Bangalore District Court
Having Regd. Office: No.G-2 vs Towards Discharge Of His Legally ... on 1 July, 2019
1 C.C.No.5710/2018
BEFORE THE COURT OF XXIV ADDL. SMALL CAUSES JUDGE
& XXII A.C.M.M. (SCCH-26) AT BENGALURU
DATED THIS THE 1st JULY 2019
PRESENT: SMT. SHARMILA.S. B.COM., LLB.,
VIII ADDL. SCJ & XXXIII ACMM
MEMBER - MACT, BENGALURU
&
C/C XXIV ADDL. SMALL CAUSES JUDGE
& XXII A.C.M.M.
BANGALORE.
1. Sl. No. of the Case CC.No.5710 of 2018
2. The date of 05-12-2018
commencement of
evidence
3. The date of closing 05-12-2018
evidence
4. Name of the M/S Shankara Building Products Limited,
Complainant having regd. Office: No.G-2,
"Farah Winsford"
No.133, Infantry road,
Bangalore-560 001,
rep by its Manager-Accounts & P.A. Holder
Mr.N.Srinivasa Murthy
S/o Mr.A.R.Narayana,
Aged about 42 years
(Advocate-Sri.B.Keshava Murthy)
5. Name of the Accused Mr.Hari Prasad,
S/o Mr.Obayya @ Obayya Poojari,
Aged about 39 years,
Jyothi Nagar,
Modubidri,
Dakshina Kannada-574227
Residing at :-
Mr.Hari Prasad
2 C.C.No.5710/2018
S/o Mr.Obayya @ Obayya Poojari,
No.11-206, Devi Prasad Nilaya,
Near Janatha colony, Pranthya village,
Moodbidri,
Dakshina Kannada-574227.
6. The offence U/s.138 of the Negotiable Instruments Act
complained of
7. Opinion of the judge Accused found guilty
JUDGMENT
This complainant company filed this complaint Under Section 200 of Cr.P.C against the accused alleging that the accused has committed the offence punishable under Sec.138 of the Negotiable Instruments Act, 1881. (In short for N.I.Act)
2. The brief facts of the complainant case is as under:
The complainant is a registered company registered under companies Act 1956, it is a leading and largest distributor for wide range of pipes and tubes and other allied products. The accused was regular customer and he purchased the materials on credit basis. The accused towards discharge of his legally enforceable debt or liability has issued a cheque bearing No.700639 for sum of Rs.2,35,425/- dated 24-08-2018 drawn on Syndicate Bank, Main road, Moodabidari-574227. 3 C.C.No.5710/2018 The said cheque presented to the bank for encashment, but which was returned with an endorsement "Exceeds Arrangements" on 09-10- 2018, it was brought to the notice of the accused through legal notice dated 20-10-2018, but the accused neither replied nor made any payment. Hence filed this complaint.
3. After filing of this complaint, case was registered as P.C.R. and sworn statement of the complainant was recorded. Thereafter cognizance was taken and registered in Crl.Reg.No.III and summons issued to the accused. In response of summons, accused appeared through his counsel and got enlarged him on bail. The plea was recorded, read over and explained to the accused he pleaded not guilty and claims to be tried. Hence the case is posted for complainant evidence.
4. The Manager-Accounts of the complainant company himself examined as PW-1 and got marked 8 documents as Ex-P1 to 8 and closed his side.
4 C.C.No.5710/2018
5. The case posted for cross examination of PW-1, but neither accused nor his counsel continuously absent. Therefore cross examination of PW-1 taken as Nil.
6. The case posted for recording of statement U/s 313 Cr.P.C. but accused was absent. Hence statement U/s 313 Cr.P.C. was dispensed with.
7. The case posted for defence evidence, on that day also accused and his counsel absent. Hence defence evidence taken as Nil.
8. Argument by both side taken as heard.
9. Upon hearing the arguments and perusal of the material placed on record, the following points arise for my consideration :-
POINTS
1. Whether the complainant has made-out the case that the accused has issued a cheque bearing No.700639 for sum of Rs.2,35,425/- dated 24-08-2018 drawn on Syndicate Bank Ltd., Main road, Moodabidri, to discharge the legally enforceable debt or liability due to the complainant and on presentation of cheque it was returned without encashment with an endorsement as "Exceeds Arrangement" and 5 C.C.No.5710/2018 accused failed to make any payment within the stipulated period and thereby accused had committed an offence punishable under section 138 of N.I Act?
2. What order?
10. My answer to the above points is as follows :-
Point No.1 : In the Affirmative Point No.2 : As per final order for the following :-
REASONS
11. POINT No.1 :- PW-1 in his affidavit in lieu of examination-in- chief reiterated the facts of the complaint once again. Ex-P1 is a cheque issued by the accused for sum of Rs.2,35,425/-, but same was dishonoured as per Ex-P2. Thereafter legal notice issued on 20-10- 2018, same was returned which are marked as Ex-P4 & 5. Thereafter within stipulated period, the complainant filed this complaint. Hence the complainant complied all the ingredients of Section 138 of NI Act.
12. Ex-P7 is a board resolution and Ex-P8 is power of attorney. On perusal of both documents, PW-1 is authorized person to represent the case. As per Section 118 and 139 of NI Act, once cheque is issued in favour of the complainant or holder in due course, in drawn the 6 C.C.No.5710/2018 presumption that the said cheque issued to discharge the legally enforceable debt or liability, but which is rebuttable presumption. In this case, the accused has not contested the case, even this court has given sufficient opportunity to contest the case. Therefore this court drawn adverse inference against the accused. Moreover the complainant furnished all relevant documents to proof of his case. Hence in my considered view, the complainant established his case by way of oral and documentary evidence. Therefore I answered point No.1 in the affirmative.
12. Point No.2: In view of the discussion made supra, I proceed to pass the following :
-: ORDER :-
Acting under Sec.264 of Cr.P.C., the accused is hereby convicted for the offence punishable under Section 138 of Negotiable Instrument Act and accused is sentenced to pay a fine of Rs.3,00,000/- (Rupees Three lakhs only). In default thereof accused shall suffer simple imprisonment for 6 (six) months.
The fine if realized, Rs.2,95,000/- there from shall be paid to the complainant as a compensation, remaining Rs.5,000/- is defrayed to the state for the expenses incurred in the prosecution.
7 C.C.No.5710/2018
The bail bond of the accused stands canceled. Office is directed to supply of certified copy of this judgment to the accused on free of cost in compliance of Section 363(1) of Cr.P.C..
(Dictated to the stenographer through online computer, transcript thereof is corrected and then pronounced by me in the open Court on this the 1st July 2019) (SHARMILA.S.) C/C XXIV ADDL. SMALL CAUSES JUDGE & XXII A.C.M.M. BENGALURU..
ANNEXURE WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT:
PW-1: N.Srinivasa Murthy DOCUMENTS MARKED ON BEHALF OF THE COMPLAINANT:
Ex.P-1 : Cheque Ex.P-1(a) : Signature of the accused Ex.P-2: Bank memo Ex.P-3: Legal notice Ex.P-4 & 5: Postal return covers Ex.P-6: Ledger account Ex.P-7: Board resolution Ex.P-8: Power of attorney
WITNESSES EXAMINED ON BEHALF OF THE ACCUSED:
NIL 8 C.C.No.5710/2018 DOCUMENTS MARKED ON BEHALF OF THE ACCUSED:
NIL (SHARMILA.S.) C/C XXIV ADDL. SMALL CAUSES JUDGE & XXII A.C.M.M. BENGALURU..