Bangalore District Court
Smt. Devamma vs Mr. Manjegowda on 4 May, 2019
IN THE COURT OF THE XII ADDL. CHIEF METROPOLITAN
MAGISTRATE, AT BENGALURU
Dated this the 4th Day of May, 2019
Present: Sri. Rajkumar .S.Amminbhavi., B.Com., LLB (Spl)
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
C.C.No. 3524/2017
Complainant: Smt. Devamma,
W/o. Late Venkatesh,
Aged about 50 years,
R/at. No.5,
Muneshwara Main Road,
Srirampura Village,
Yelahanka Hobli,
Bengaluru North Taluk.
(By Mr. K.K.Puttaraju., Adv.)
V/s
Accused: Mr. Manjegowda,
S/o. Rangegowda,
Aged about 35 years,
R/at. Nanundappa House,
Amruthahalli Village,
Opp. Government Hospital,
Hoodi Layout,
Sahakaranagar Post,
Bengaluru North Taluk.
(By. Mr. Jayakumar., Adv.)
Offence complained of: U/s 138 of the Negotiable
Instruments Act
Plea of the accused: Pleaded not guilty
Final Order: Accused is convicted
2 C.C.No:3524/2017
Date of order: 04.05.2019
JUDGMENT
This is a complaint filed by the complainant under Sec.200 of Cr.P.C against the accused for the offence punishable under Sec.138 of the Negotiable Instruments Act.
2. The facts of the complaint in brief are that :
The complainant and accused are running panipuri shop at Amruthahalli and thereby the complainant know the accused for the last few years. On account of their well acquaintacy, the accused requested for hand loan amount of Rs.3,00,000/- in the first week of January 2014 in order to meet out his urgent financial and business necessity and he had agreed to repay the same within 6 months. Believing on good faith, in the third week of January 2014 the complainant advanced the said loan amount by way of cash. At that time the accused had given the xerox copy of the sale deed dated 21/11/2013 and encumbrance certificate wherein the sale agreement dated 16/04/2012 which was in the name of his wife who is a proposed purchaser and he had intended to alienate the said property and for that he had borrowed the loan amount. After expiry of stipulated period, the complainant had requested the accused to repay the hand loan amount for which the accused has repaid Rs.50,000/- and the 3 C.C.No:3524/2017 accused has further undertaken to pay the balance amount of Rs.2,50,000/- by way of installments at the rate of Rs.10,000/- per month. But he failed to pay the balance amount every month as agreed by him. Therefore, when the complainant demanded for payment of balance borrowed loan amount of Rs.2,50,000/-, at that time the accused issued a cheque bearing No:550937 dated 16/01/2016 for Rs.2,50,000/- drawn on Corporation Bank, Jakkur Layout Branch, Bengaluru. He had assured that the said cheque will be honoured on its presentation. As per the assurance made by the accused, the complainant presented the said cheque through her Banker Corporation Bank, Kogilu Branch, Bengaluru. But the said cheque was dishonoured with an endorsement "Funds insufficient" on 22/02/2016. Immediately the said fact was informed by the complainant to the accused but he did not responded. Then the complainant got issued legal notice on 05/03/2016 by RPAD calling upon the accused to repay the cheque amount within 15 days from the date of receipt of this legal notice. In spite of receipt of legal notice, the accused has neither repaid the said amount nor sent any reply notice. Hence, the complainant had constrained to file the said complaint against the accused for the offence punishable under Section 138 of N.I. Act., which is well within time and based on the records available on record cognizance has been taken and registered it PCR.4 C.C.No:3524/2017
3. After recording of the sworn statement of the complainant and complaint is registered in criminal case register and after issuance of summons to the accused, pursuant to the summons the accused had appeared before this Court through his counsel and enlarged on bail. The substance of accusation was recorded and read over to the accused in his vernacular on 30/01/2019. He pleaded not guilty. Hence, he claims for trail.
4. In order to prove the case of the complainant, the complainant at pre-trial stage got examined herself as PW- 1 and got marked 05 documents. The plea was recorded on 30/01/2019 and the accused claims for trial. On the same day ie., 30/01/2019, the accused was directed to deposit 20% of the cheque amount as interim compensation within 60 days as per Section 143-A(1) of N.I.Act. The counsel for the accused filed an application under Section 145(2) of N.I.Act for recalling PW-1 for cross and the said application was allowed and PW-1 was recalled for cross subject to deposit of 20% of the cheque amount. As per the directions of the court, the accused failed to deposit the 20% of the cheque amount. From the date of recording plea dated 30/01/2019, the period of 60 days elapsed on 31/03/2019. The accused and the counsel for the accused did not file any application for extension of another 30 days therefore, the question of granting time for deposit of 20% 5 C.C.No:3524/2017 of the cheque amount does not arise. Hence, cross of PW-1 is taken as no cross. In the instant case, if the mandatory provision under Section 143A of N.I.Act is not complied, the very object of the amendment to the legislature will be defeated. The present complaint is summary trial, quasi criminal in nature like recovery proceeding, hence, the recording of statement under Section 313 of Cr.P.C was dispensed with. Since accused has not at all crossed PW- 1, the evidence of PW-1 is unchallenged one and the accused has violated the mandatory provision of Section 143(A) of N.I.Act. Hence, defence evidence is struck off. Hence, defence evidence is taken as no evidence. I am relying the citation reported in AIR 2014 SC 2528 in Indian Bank Association & others V/s. Union of India and others - Negotiable Instruments Act (26 of 1881), Section 138, 143, 145 - dishonor of cheque - summary trial - directions given to trial court to follow procedures for speedy and expeditious disposal of cases falling under Section 138 of N.I.Act. Thereby the appearance of the accused is dispensed with and case was posted for arguments.
5. Heard arguments.
6. The following points arise for my determination;
1) Whether the complainant proves that the accused had issued a cheque bearing No:550937 dated 16/01/2016 for Rs.2,50,000/- drawn on Corporation 6 C.C.No:3524/2017 Bank, Jakkur Layout Branch, Bengaluru for discharge of the amount and when the said cheque was presented for encashment, it was dishonoured with an endorsement "Funds insufficient" and after issuance of the legal notice he fails to repay the said amount and thereby, the accused has committed offence punishable U/s 138 N.I.Act ?
2) What order ?
7. My answer to the above points are;
Point No.1 : In the Affirmative
Point No.2 : As per final order for the
following;
REASONS
8. POINT No.1 : The complainant at pre-trial stage she herself examined as PW-1. She has reiterated as per the averments made in the complaint and got marked 05 documents namely, Ex.P1 cheque, Ex.P.1(a) signature of the accused, Ex.P.2 is the Bank endorsement which was dishonored with an endorsement "Funds insufficient", the office copy of the legal notice which is marked as Ex.P.3, postal receipt is marked as Ex.P.4 and Postal acknowledgement is marked as Ex.P.5.
9. As per the amendment provision under Section 143A of N.I.Act., if the accused pleaded not guilty and claims for trail and after payment of 20% of the cheque amount as interim compensation, within 90 days from date 7 C.C.No:3524/2017 of recording of the plea, then only he is having right to cross-examine the PW-1. Accordingly, in the instant case, in spite of giving sufficient opportunity neither the accused nor his counsel has failed to deposit 20% of the cheque amount. Hence, the accused has not complied the mandatory provision of Section 143A of N.I.Act and accordingly granting time for cross of PW-1 does not arise. Hence, cross of PW-1 is taken as no cross and the statement of accused under Section 313 of Cr.P.C is hereby dispensed. Hence, defence evidence taken as no evidence and heard arguments and posted the matter for judgment.
10. On perusal of the averments made in the complaint and documents produced by the complainant, prior to filing of the said complaint the complainant has complied all the necessary ingredients of Section 138 of N.I.Act. Though the legal notice was duly served upon the accused, he failed to give any reply notice. The cheque is also admitted issued by the present accused and Ex.P.1 is the cheque belonging to the accused and Ex.P.1(a) is the signature of the accused. The case of the complainant is that the complainant and accused who are both doing panipuri business and the accused was intending to purchase the site and for financial difficulties he was requested for advancement of loan amount of Rs.3,00,000/- in the first week of January 2014 and she had agreed to advanced the amount and accordingly she 8 C.C.No:3524/2017 had advanced in the third week of January 2014 by way of cash and the accused had agreed that he will repay the same within 6 months. The accused had given the sale deed copy for security purpose wherein the proposed purchaser was the wife of the accused and it was dated 16/04/2012 and it was proposed to purchase from one Ranganath.C., S/o. Chinnappa for a sale consideration of Rs.3,00,000/- and accordingly he had borrowed the loan amount from the complainant and after 6 months when the complainant demanded at that time he had paid part of the borrowed loan amount to an extent of Rs.50,000/- and he undertook to pay the balance amount of Rs.2,50,000/- on monthly installment at the rate of Rs.10,000/- per month. But he failed to make repayment as agreed and thereby only he had issued the cheque in question. The accused has partly admitted his liability and this admission itself is sufficient to consider the evidence that he had borrowed the loan amount and the he has given the xerox copy of the sale agreement which was entered into between the wife of the accused and one Ranganath. If really the accused had not at all borrowed the loan in question, why he has given the xerox copy of the sale agreement to the custody of the complainant. Therefore, knowing fully well he had borrowed the loan amount from the complainant and for repayment of the borrowed loan amount he has paid only Rs.50,000/- and for balance amount he has issued Ex.P.1 cheque. If really the accused 9 C.C.No:3524/2017 had not at all borrowed the loan amount, he ought to have given stop payment instruction to his banker, he ought to have given reply notice to the complainant and ought to have adduced his defence evidence and cross-examined PW-1 and he ought to have challenged the cognizance taken by this court. Therefore, the non-compliance of the aforesaid legal proceedings that itself, is very much fatal to the alleged defence set-up by the accused during the course of recording of his accusation. There is no dispute that Ex.P.1 cheque is belonging to his own bank account and the signature found on Ex.P.1(a) cheque also is his own signature. It can be presumed that the accused knowing fully well without having sufficient funds in his bank account, with an intention to defeat the claim of the complainant has issued Ex.P.1 cheque.
11. The drawer of the cheque shall have to take abundant precaution prior to issuance of cheque in question. Therefore, in the instant case also, it can be presumed that no any ordinary prudent man will issue signed blank cheque to any other persons without having monetary transaction between themselves. Further, the complainant has proved his case by adducing cogent and corroborative evidence as per the Section 138 of N.I.Act. On the other hand, the accused has failed to rebut the defence as per Section 139 of N.I.Act by adducing cogent and corroborative evidence. Hence, the probability of the 10 C.C.No:3524/2017 preponderance is higher on the side of the complainant, rather than the accused.
12. Ordinarily offence under Section 138 of N.I.Act "mensrea" is not essential, under Section 138 of N.I.Act , is bring into operation rule of "strict liability", whereas, "mensrea" is essential ingredients in criminal offences. Therefore, the complainant has proved her case against the accused, since offence under Section 138 of N.I.Act element of Mensrea has been excluded in general public interest to curb the instances of dishonouring of cheque and to lend the credibility to the commercial transaction. Therefore, in this case also the accused knowing fully he was borrowed the loan in question from the complainant and for discharge the loan in question he has issued the Ex.P-1 to the complainant. Since the present complaint is summary trial and quasi-criminal in nature, it is like recovery proceedings and punishment is fine or in default of it simple imprisonment. In this context, I am relying the citation reported in AIR 2009 NOC 404 (Kerala) in Babu V/s. K.J.Joseph. It is argued that it is evident from Section 356(6) of Cr.P.C that, in case of judgment is one of acquittal or fine only, it is not necessary for personal presence of the accused to receive the copy of the judgment. Hence, in this case also in the absence of the accused the court will pass the judgment.
11 C.C.No:3524/201713. Hence, in the light of the above observation, the complainant has successfully proved that, the accused has committed offence punishable under Section 138 of N.I. Act. With these reasons, I am of the opinion that, the complainant successfully established before the Court that the accused has issued Ex.P.1 to the complainant for the legally recoverably debt. Therefore, I answer the point No.1 in the affirmative.
14. Point No.2 : In view of my findings on Point No.1 in the affirmative, I proceed to pass the following :
ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
The accused shall pay a fine of Rs.2,50,000/- (Rupees Two lakhs and Fifty Thousand only). In default of payment of said fine amount, the accused shall undergo simple imprisonment for a period of two months.
Further ordered that out of the said fine amount, Rs.2,48,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C and remaining amount of Rs.2,000/- shall be remitted to the state as fine.12 C.C.No:3524/2017
The bail bond and surety bond of the accused stands cancelled.
Supply a free copy of this Judgment to the accused.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified, corrected and then pronounced by me in the open Court on this the 4th day of May, 2019).
(Rajkumar.S.Amminbhavi) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the complainant:
PW.1 Smt. Devamma 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 Office copy of the legal notice Ex.P.4 Postal receipt Ex.P.5 Postal acknowledgement
List of witnesses examined on behalf of the accused : Nil.
List of documents exhibited on behalf of the accused : Nil.
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.13 C.C.No:3524/2017
04/05/2019 Complainant - KR Accused - JK Judgment (Judgment pronounced in the open court vide separate order) ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
The accused shall pay a fine of Rs.2,50,000/- (Rupees Two lakhs and Fifty Thousand only). In default of payment of said fine amount, the accused shall undergo simple imprisonment for a period of two months.
Further ordered that out of the said fine amount, Rs.2,48,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C and remaining amount of 14 C.C.No:3524/2017 Rs.2,000/- shall be remitted to the state as fine.
The bail bond and surety bond of the accused stands cancelled.
Supply a free copy of this Judgment to the accused.
(Rajkumar.S.Amminbhavi) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.