Bangalore District Court
M/S. Kotak Mahindra Bank vs M/S. Prabhu Photos on 10 April, 2015
IN THE COURT OF THE XXVI ADDL.CHIEF
METROPOLITON MAGISTRATE, BANGALORE CITY
Dated this the 10th day of April 2015
PRESENT:SMT.SUMANGALA S.BASAVANNOUR B.Com. LL.M
XXVI Addl.C.M.M., Bangalore City.
JUDGMENT U/S 355 OF Cr.P.C
Case No. : C.C No.37320/2011
Complainant : M/s. Kotak Mahindra Bank
Ltd.
No.10/7, Umiya Land Mark,
Lavelle Road,
Next to Chancery Hotel,
Bangalore - 560 001
Represented by its Manager
Mr. Saju K.V.
(By Sri.P.P. Adv.)
Accused : 1. M/s. Prabhu Photos,
Prabhu Diotals,
No.32, Brigde Road,
Bangalore - 560 001
Represented by its Proprietor
Mr. Allama Prabhu H.N.
2. Mr. Allama Prabhu H.N.
No.71-01, 2nd Floor,
Brigade Road,
Bangalore - 560 001
(By Sri.N.R., Adv.)
Offence complained of : U/s 138 of N.I.Act.
Plea of the accused : Pleaded not guilty.
Final Order : Accused is Convicted.
Date of Order : 10/04/2015.
2 C.C.No.37320/2011
The complainant filed the private complaint u/s 200
of Cr.P.C alleging that, the accused person has
committed an offence punishable u/s 138 of N.I.Act.
2. The brief facts of the complainant's case are as
follows:
Complainant in the course of various loan scheme
to its valued customers. Likewise the Accused had
applied and availed a loan under the scheme Personal
Loan and the same was sanctioned vide Loan Agreement
CSG No. 1787290 as the Accused has agreed to abide by
the terms and conditions. After availing the said facility
utilized the same. The accused issued cheques towards
monthly installments for the repayment of the loan
amount and assured to the Complainant that he will
maintain sufficient balance in their account and cheque
will be honoured on the due date. But to the contrary,
the below mentioned cheques when presented, was
dishonoured.
3 C.C.No.37320/2011
Cheque Date Drawn Amount (Rs)
No. On
Reason
063272 10.05.2011 Syndicate Rs. 14500/-
Bank
(Exceeds Arrangement)
063273 10.06.2011 Syndicate Rs. 14500/-
Bank
(Exceeds Arrangement)
063274 10.07.2011 Syndicate Rs. 14500/-
Bank
(Funds Insufficient)
063275 10.09.2011 Syndicate Rs. 14500/-
Bank
(Exceeds Arrangement)
The above-mentioned cheque were drawn on Syndicate
Bank, and presented through the Complainant' banker.
Cheque return endorsement dated 19.10.2011. The
Complainant through its Advocates issues a legal notice
dated 05.11.2011 to the Accused u/s 138 (b) of the N.I.
Act 1881, demanding the Accused to pay the dues within
15 days from the date of receipt of the notice. The said
notice was issued was issued through Registered Post
Acknowledgement due to both the Accused, to both the
addresses as mentioned in the cause title. The
4 C.C.No.37320/2011
acknowledgment for having issued the notice were not
returned from the postal authority, hence complaint was
lodged before the said authority on 08.12.2011, seeking
the status of the said legal notice. The rejoinder notice
dated 08.11.2011 was issued to the 1st and 2nd Accused
u/s 138 (b) of the NI Act 1881, acknowledgment for
having issued the said rejoinder is also not returned,
hence a complaint was lodged to postal authority on
08.12.2011 seeking the status of the rejoinder. The
Accused have neglected to settle the amount due even
after giving several opportunities. The Accused has
issued the cheques knowing fully well that there was no
sufficient amount in their bank account for honouring
the cheque. This act of the Accused renders themselves
liable to be prosecuted under the provisions of the NI Act
1881 as amended up to date.
3. After presenting this case, this court has taken
cognizance of the offence and after recording the sworn
statement of the complainant's side, this court registered
the criminal case against the accused alleging that, he
5 C.C.No.37320/2011
has committed an offence punishable u/s 138 of N.I.Act.
Summons issued to the accused. The same is served
upon the accused. The accused appeared through his
counsel, enlarged on bail and he denied the entire case of
the complainant at the time of recording his plea of
accusation and case to be tried.
4. In support of the case of the complainant, he
examined himself as PW.1 and got marked Ex.P1 to P20
and this PWs.1 has been fully cross-examined by the
accused counsel and thus, the complainant closed his
side evidence.
5. Thereafter, the statement of accused u/s 313
Cr.P.C is recorded, in which, he totally denied the entire
case of the complainant and not adduced any rebuttal
evidence and thus, the accused also closed his side
evidence.
6. Heard both sides.
6 C.C.No.37320/2011
7. On the basis of the aforesaid facts and
circumstances, the following points arise for my
consideration:
1) Whether the complainant proves that,
beyond all reasonable doubt for
repayment of the loan advanced by the
complainant, the accused issued a
cheque bearing No. 063272 dated
10.05.2011, 0632763 dated 10.06.2011,
063274 dated 10.07.2011, 063275 dated
10.08.2011 for Rs. 14,500/- each and all
the cheques drawn on Syndicate Bank
the same are dishonoured for the reason
'Exceeds Arrangement' and 'funds
sufficient' and inspite of issuance of
legal notice, the accused did not comply
or reply to the notice and thus, he has
committed an offence punishable u/s
138 of N.I.Act?
2) What Order?
8. My answer to the above points are as follows:
1) In the Affirmative,
2) As per final Order,
For the following:
REASONS
9. POINT NO.1: It is the case of the Complainant
that, Accused availed the loan vide Loan Agreement CSG
No. 1787290 as the Accused has agreed to abide by the
7 C.C.No.37320/2011
terms and conditions. Towards part repayment / EMIS in
respect of above said loan account Accused No.2 have
issued the cheque which belongs to Accused No.1 as
personal capacity as Proprietor vide cheque bearing No.
063271 dated 10.04.2011, 063272 dated 10.05.2011,
063273 dated 10.06.2011, 063274 dated 10.07.2011,
063275 dated 10.08.2011 all drawn on Syndicate Bank
Residency Road, Bangalore each for sum of Rs. 14,500/-
totaling amount of Rs. 72,500/- in discharge of the
liability partly which the Accused has incurred the loan.
As per the assurance of the Accused No.2 Complainant
bank presented the cheque for encashment through their
bankers Kotak Mahindra Bank Ltd. Bangalore but all the
cheque returned dishonoured with a reason funds
insufficient. As per cheque return memo dated
19.10.2011. Though this fact was brought to the notice
of the Accused No.2, the payment was not forthcoming so
the Complainant bank got issued legal notice dated
15..11.2011 through their advocate, calling upon the
Accused to make the payment within 15 days from the
8 C.C.No.37320/2011
date of service of the notice. The Notice sent by RPAD to
Accused No. 1 and 2 was duly served on 08.11.2011 as
per the reply issued by the postal authority. They found
correction in the notice that totaling amount has been
mentioned wrongly, in respect to that, they have issued
rejoinder notice on 8.11.2011, the said notice also sent to
the Accused under RPAD. The said rejoinder notice was
served on 09.11.2011, as per the reply letter by the
postal authority. Even after receipt of the notice
Accused No.2 neglected and avoided the payment
towards his liability the Accused No.2, has issued the
said cheque towards part repayment of EMI in favor of
Complainant bank which belongs to the Accused No.1 in
personal capacity as proprietor, in discharge of the
liability partly due to the Complainant bank. Hence,
the Accused committed an offence punishable under
section 138 NI Act.
10. In support of the case of the complainant, Sri.
Manu Sunder Vadivel M, Deputy Manager of the
Complainant bank is examined as PW.1 filed by way of
9 C.C.No.37320/2011
affidavit. In his chief examination, he reiterated the
averments of the complaint and got marked Certified
copy of the resolution at Ex.P1, Original cheque vide No.
063271 at Ex-P2, Original cheque vide No. 063272 at Ex-
P3, Original cheque vide No. 063273 at Ex-P4, Original
cheque vide No. 063274 at Ex-P5, Original cheque vide
No. 063275 at Ex-P6 and Signature of the Accused
marked as Ex-P2(a), P3(a), P4(a), P5 (a) and P6(a), cheque
return memo issued by the Syndicate Bank at Ex-P7 to
P11 respectively, Office copy of the legal notice marked
at Ex-P12, Postal receipts 2 in numbers Ex-P12(a) and
Ex-P12(b), Copy of the postal complaint at Ex-P13, Reply
by the postal department Ex-P14 to P15, Office copy of
the rejoinder notice at Ex-P16, Postal receipts two in
numbers at Ex-P16(a) and P(b), Copy of the original
complaint at Ex-P17, Reply by postal department at Ex-
P18 and P19, Complaint at Ex-P20.
11. During the course of cross-examination PW1
stated that the Accused issued total five cheques, the
presented disputed cheque are Rs. 14,500/- each and total 5
10 C.C.No.37320/2011
cheques amount is Rs. 72,500/- and also defense
counsel suggested that, Accused is ready to pay Rs.
72,500/- in five installments towards full and final
settlement of the cheque amount but PW1 stated that,
he is ready to receive the Rs. 72,500/- in one shot and
denied to received Rs. 72,500/- in 5 installments.
12. The Ex.P2. is the original cheque bearing
No.0623271 dated 10.04.2011, Ex-P3 is the cheque
bearing No.0623272 dated 10.05.2011, Ex-P4 is the
cheque bearing No.0623273 dated 10.06.2011, Ex-P5 is
the cheque bearing No.0623274 dated 10.07.2011, Ex-P6
is the cheque bearing No.0623275 dated 10.08.2011 for
Rs. 14,500/- each all cheques drawn on Syndicate Bank,
Residency Road Shoolay, Bangalore-25. A careful
reading of original complaint as per Ex-P20 and original
cheque/Ex.P.2 to P6 makes it clear that they support
the stand taken by the complainant.
13. The Ex.P.7, P8, P9 and P11 are the cheque
return memo issued by Syndicate Bank, which shows
that the aforesaid cheque has been dishonoured on
11 C.C.No.37320/2011
19.10.2011 with reasons "exceeds arrangement" in the
account of the accused herein. Ex-P10 is the cheque
return memo issued by Syndicate Bank, which shows
that the aforesaid cheque has been dishonoured on
19.10.2011 with reasons "funds insufficient" in the
account of the accused herein.
14. It must be noted that as per clause (b) of
proviso to section 138 of NI Act the complainant was
required to make a demand for repayment of the said
amount within 30 days from the date of receipt of cheque
as unpaid. The Ex.P.12 show that complainant made a
demand, in writing, calling upon the accused to make
repayment of the above said cheques amount by issuing
notice dated 05.11.2011, which is within 30 days from
the date of receipt of cheque as unpaid. Ex-P16 rejoinder
notice dated 08.11.2011
15. The Complainant made a complaint before the
postal authority regarding non receipt postal
acknowledge for the notice sent by RPAD AS PER eX-P13,
The Ex.P.14 and P15 are postal reply it discloses that,
12 C.C.No.37320/2011
"is settled on 19.12.2011 with following information that,
rl did on 08-11-2011". The Complainant made a
complaint before the postal authority regarding non
receipt postal acknowledge for the notice sent by RPAD
as per Ex-P17. Ex-P18 reply by the postal authority
discloses the articles was delivered on 09.11.2011.
Ex-P19 reply by the postal authority discloses the articles
was delivered on 09.11.2011. Ex-P20 original complaint.
Hence, deemed as notice served on the Accused on
08.11.2011. As per clause (C) of proviso to section 138 of
NI Act the accused was entitled to have 15 days time to
make the repayment of aforesaid loan amount. Further
as per section 142(b) of NI Act the complaint is to be filed
within 30 days from the date on which the cause of
action arises. Admittedly the complaint was filed
14.12.2011, so the complaint is filed within a time
prescribed. As per Sec.142(b).
16. In this case, during the course of statement u/s
313 of Cr.P.C. Accused admitted regarding availment of
13 C.C.No.37320/2011
loan from the Complainant bank and he also admitted
issuing the cheque as per Ex-P2 to P6. So, it is clear that,
the Accused had borrowed the loan from the
Complainant bank and to discharge of the debt Accused
had issued a cheques as per Ex-P2 to P6. Once it is
established the cheque was issued by the Accused then
burden shift on him to prove that it was not issued in
discharge of any legally existing debt. But in the present
case, the Accused is not disputed regarding the issuance
of the cheque towards repayment of loan amount.
Further the Accused not denied the case of the
Complainant. Hence the evidence of PW1 and documents
produced by him became unchallenged. By considering
the above facts and circumstances, the Accused had
issued the cheques as Ex-P2 to P6 towards the discharge
of loan amount.
17. In my view, if the accused was not liable to pay
the amount mentioned in the cheque, then definitely the
accused would not have suggested such questions in the
cross-examination of P.W.1. Besides, it is also well
14 C.C.No.37320/2011
settled that the suggestion is the reflection of the case of
the opponent. Therefore, the cumulative effect of these
things is that the accused was liable to pay the amount
mentioned in the cheque in question to the complainant
and to discharge the said liability the accused has issued
the cheque in question, but, the cheque so issued has
been dishonoured because of the exceeds arrangements
and funds insufficient in the account of the accused
herein. Hence, I hold that the materials available on
record are sufficient to conclude that the accused has
committed the offence punishable u/s 138 of NI Act.
18. In this regard I relied the decision reported
Judgment Crl. R. Application No. 21/2005 in
M/s.Cabrala and Company vs Sri. William Rosario
Fernandes in this decision Hon'ble High Court held that,
" The controversy relates to subsequent
effect which took place after the offence u/s
138 of Act, was completed, upon the failure
of the accused to comply with the demand
made by the Complainant in his notice. The
offence was completed when the Accused
after receiving the notice on 02.03.2002
failed to comply with the same by making
payment before stipulated time on or before
17.03.2013. In this context Clause (c) of
15 C.C.No.37320/2011
Section 138 of Act could referred to and
which provides that before offence u/s 138 of
the Act is said to be committed the drawer of
the cheque should fail to make the payment
of the amount of money to the payee, or the
case may be, to the holder in due course of
the cheque within 15 days or the receipt of
the said cheque.
Once the offence was committed bythe
accused on 17.03.2001 subsequent events
whichtook place between the Complainant
and the Accused could at themost be taken
as mitigating circumstances in favor of the
Accused for the purpose of sentence, and
nothing more and certainly they could not
have been taken to contend that there was
no legally enforceable debt payable by the
accused to the Complainant t\or to say that
no offence was committed by the Accused.
19. I relied decision reported in 2003 (1) DCR 101 in
Jauss Polymers Ltd. and another vs M/s. Swahnay
Brothers Hon'ble Delhi High Court held in this case that,
"if all the requirements of the ingredients of
the section are fulfilled and satisfied, the
offence is complete and trail and punishment
of the Accused will be perfectly legal and
payment of the amount of the cheque after
the institution of the criminal complaint,
would not wipe out the offence."
" If the amount of the cheque has not been
paid by the drawer of the cheque within a 15
days from the date of the receipt of the
16 C.C.No.37320/2011
notice of the demand from the payee, offence
is complete even if it was made on 16th day."
20. In the instant case, from the evidence of PW1
and Ex-P1 to P20 it is clear that, the Accused had
committed an offence u/s 138 of NI Act. And all the
requirements of the ingredients of the sections are
fulfilled and satisfied, the offence is complete.
21. It is pertinent to note that, in this case the
complaint and sworn statement discloses the cheque No.
063272 to 063275 total four cheques, but on the
contrary evidence of PW1 discloses cheque No. 063271
to 063275 total five cheques and Complainant also got
marked five cheques as Ex-P2 to P6 and also produced
cheque return memo Ex-P7 to P11. Though Accused not
disputed regarding the cheque No. 063271 but there is
no avements in the complaint regarding Ex-P2 cheque
bearing No. 063271. It is settled principle of law that
evidence without pleadings is not admissible. Hence Ex-
P2 cheque is not considered.
17 C.C.No.37320/2011
22. On the basis of aforesaid facts and
circumstances of the case of both the complainant and
accused and issuance of Ex.P2 to P6 cheques, I hold
that, the holder in due course has got legal right to take
steps against the drawer for dishonour of cheques.
Hence, the complainant has proved his case beyond all
reasonable doubt and accused failed to give rebuttal
evidence to the case of the complainant. Hence, the
accused is liable for conviction. Accordingly, I answer
point No.1 in the Affirmative.
22. POINT NO.2: For the above said reasons, I
proceed to pass the following:
ORDER
Acting u/s 255(2) of Cr.P.C., the accused is convicted for the offence punishable u/s 138 of N.I.Act and sentenced to pay fine of Rs.72,000/-.
18 C.C.No.37320/2011If fine is realized, pay a sum of Rs.72,000/- to the complainant as compensation.
In default of payment of this compensation amount, the accused shall undergo simple imprisonment for three months.
Office is directed to furnish the copy of this Judgment at free of cost to the accused.
(Dictated to the Stenographer, transcribed and computerized by her, corrected and then pronounced by me in the open court on this the 10th day of April 2015) (SUMANGALA S.BASAVANNOUR) XXVI Addl. Chief Metropolitan Magistrate, Bangalore City.
ANNEXURE Witnesses examined for the Complainant:
PW.1 Mano Sunder Vadivel M Witness examined for the accused:
NIL List of Documents marked for the Complainant:
Ex.P1 CC of the resolution
Ex.P2 Original cheque vide No. 063271
Ex.P2a Signature of the Accused on the cheque
Ex.P3 Original cheque vide No. 063272
19 C.C.No.37320/2011
Ex.P3a Signature of the Accused on the cheque
Ex.P4 Original cheque vide No. 063273
Ex.P4a Signature of the Accused on the cheque
Ex.P5 Original cheque vide No. 063274
Ex.P5a Signature of the Accused on the cheque
Ex.P6 Original cheque vide No. 063275
Ex.P6a Signature of the Accused on the cheque
Ex.P7 Cheque return memo issued by Syndicate Bank
Ex.P8 Cheque return memo issued by Syndicate Bank
Ex.P9 Cheque return memo issued by Syndicate Bank
Ex.P10 Cheque return memo issued by Syndicate Bank
Ex.P11 Cheque return memo issued by Syndicate Bank
Ex.P12 Office copy of legal notice
Ex.P12(a&b) Postal receipts two in number
Ex.P13 Copy of the postal complaint
Ex.P14 Reply by the postal department
Ex.P15 Reply by the postal department
Ex.P16 (a&b) Postal receipts two in number Ex-P17 Copy of original complaint Ex.P18 Reply by the postal department Ex.P19 Reply by the postal department Ex.P20 Complaint List of Documents marked for the accused:
NIL XXVI ACMM, Bangalore.