Bangalore District Court
Has Filed The Compliant Against The vs For The Offence Punishable U/S 138 Of ... on 16 January, 2020
IN THE COURT OF THE XXVIII ADDL. CHIEF
METROPOLITON MAGISTRATE NRUPATHUNGA ROAD,
BENGALURU CITY
Present:- Sri. ABDUL RAHIM HUSSAIN SHAIKH
B.Sc, B.Ed, LLB(Spl)
XXVIII A.C.M.M
Bengaluru City.
Dated this the 16th day of January, 2020
CC.No.18537/2019
JUDGMENT
1. Sl.No. of the case : C.C.No.18537/2019
2. The date of commence of evidence: 13.08.2019
3. The date of Institution : 29.04.2019
4. Name of the Complainant :M/s Saurav Suman Finvest Pvt Ltd, No.4, 2nd cross, Mysore road, Bangalore-560026.
Rep by authorised Rep Tinku Khemka.
5. Name of the Accused : 1.M/s Balaji Glass, Playwood and Hardware No.2, 2nd main road, Opposite Ring road bus stop, Muneshwara Layout, Laggere, Bangalore.
2.Mr. Vardharaj No.2, 2nd Main road, 2 CC.No.18537/2019 Opposite Ring road bus stop, Muneshwara Layout, Laggere, Bangalore.
6. The offence complained of or proved : U/s.138 of N.I. Act
7. Plea of the accused on his examination : Pleaded not guilty
8. Final Order : Accused is convicted
9. Date of such order : 16.01.2020 JUDGMENT
1. This case has been registered against the accused on the basis of the complaint filed by the complainant u/s 200 of Cr.P.C. for the offence punishable u/s 138 and 142 of Negotiable Instrument Act.
2. The gist of the complainant's case is that:
The complainant is a dealer in Laminated sheets and allied products. The accused used to purchase/take laminate sheets and other materials from the complainant on credit basis. In order to encourage the sales and due to long standing relationship the complainant used to extend credit 3 CC.No.18537/2019 facilites to the accused and allowed reasonable time to repay the outstanding liabilities. This arrangement was being followed as the accused has been in association with the complainant since a long time and accused did not pay the outstanding amount with up to date interest inspite of several requests. After continuous follow up on the outstanding payments, towards partial payment of the outstanding liabilities and dues, the accused issued the two cheques bearing no.s(1)015438 dt:7.1.2019 for Rs.10,000/- drawn on Dena bank, Kempegowda road, (2) cheque No.089195 dt:15.3.2019 for Rs.24,000/- drawn on Canara Bank, Laggere branch, Bangalore. Which on presentation of the said cheques with their banker HDFC bank Ltd, Millers road, they were returned with an endorsements 'Exceeds arrangement' & 'Funds Insufficient' with a memo's dated 04.04.2019 & on 16.3.2019 and thereafter on 11.04.2019 complainant got issued a legal notice through RPAD. It is the case 4 CC.No.18537/2019 of the complainant that even after lapse of 15 days from the date of receipt of the notice the accused fails to pay the cheque amount. Accordingly, the complainant has filed the compliant against the accused for the offence punishable u/s 138 of N.I. Act on 24.06.2019.
3. In pursuance of the summons, the accused has appeared through Counsel and got enlarged on bail by executing necessary documents. The copy of the complaint was furnished to the accused, as required under law. As there was sufficient material, plea was recorded against the accused on 07.12.2019 and explained to the accused in his vernacular, for which the accused pleaded not guilty and claims to be tried.
4. In order to prove the case, the General Manager of the complainant company Sri.Tinku Khemka examined as PW1 and got marked Ex.P1 to P11 and closed the side. Accused neither examined nor got marked any documents on his behalf.
5 CC.No.18537/2019
5. When the matter posted for cross of PW1, accused and complainant jointly submitted memo stating that accused has agreed pay a sum of Rs.35,000/- as full and final settlement and accused agreed to pay the said amount to the complainant by way of issuing a postdated cheque bearing No.672341, dated:28.01.2020 drawn on Canara Bank, Laggere Bank, Bengaluru in favour of the complainant.
6. Both the accused and the complainant along with their counsels prayed to pass the judgment to that effect on the joint memo. In the instant case PW1 was not cross examined nor any cogent evidence and relevant documents had been produced by the accused to disprove the case of the complainant.
7. Heard the arguments and perused the material placed on record.
8. On the basis of the above facts, the following points arise for my consideration:
Whether the complainant proves that 6 CC.No.18537/2019 the accused towards discharge of legal recoverable debt issued two cheques bearing Nos.(1) 015438 dt:07.01.2019 for Rs.10,000/- drawn on Dena Bank, Kempegowda road, Bangalore (2) 089195 dt:15.03.2019 for Rs.24,000/-
drawn on Canara Bank, Laggere branch, Bengaluru in favour of the complainant, on presentation for encashment it was returned as 'Exceeds arrangement' & 'Funds Insufficient' and inspite of receipt of legal notice, the accused failed to pay the cheque amount within the statutory period and thereby the accused has committed an offence punishable u/s 138 of N.I. Act?
2. What order?
9. My findings on the above points are as under:
Point No.1: In the Affirmative Point No.2: As per final order, for the following:7 CC.No.18537/2019
REASONS
10. Point No.1:- In order to prove the case, Mr. Tinku Khemka S/o Bhagwati Prasad Khemka, the authorized signatory of the complainant Company examined as PW1 filed affidavit in lieu of examination- in-chief and has reiterated the allegations made in the complaint and oath and got marked documents Ex.P1 to Ex.P11. Ex.P1 is the resolution, Ex.P2 is the ledger account, Ex.P3 is the cheque, Ex.P3(a) is the signature of the accused, Ex.P4 is the bank memo, Ex.P5 is the copy of the legal notice, Ex.P5(a) is the postal receipt, Ex.P6 is the track consignment, Ex.P7 is the complaint, Ex.P8 is the cheque, Ex.P8(a) is the signature of the accused, Ex.P8(b) is the signature of the accused, Ex.P9 is the cheque, Ex.P9(a) is the signature of the accused , Ex.P9(b) is the bank memo, Ex.P10 is the legal notice, Ex.P10(a) is the postal receipt, Ex.P11 is the track consignment. In the 8 CC.No.18537/2019 instant case PW1 was not cross examined nor any cogent evidence and relevant documents had been produced by the accused to disprove the case of the complainant.
11. As noted supra when the matter posted for cross-examination of PW1, complainant and accused jointly submitted Memo stating that accused has agreed pay a sum of Rs.35,000/- as full and final settlement and accused agreed to pay the said amount to the complainant by way of issuing a postdated cheque bearing No.672341, dated:28.01.2020 drawn on Canara Bank, Laggere Bank, Bengaluru in favour of the complainant.
12. It is the definite case of the complainant that the complainant is a dealer in Laminated sheets and allied products. The accused used to purchase/take laminate sheets and other materials from the complainant on credit basis. In order to encourage the 9 CC.No.18537/2019 sales and due to long standing relationship the complainant used to extend credit facilites to the accused and allowed reasonable time to repay the outstanding liabilities. This arrangement was being followed as the accused has been in association with the complainant since a long time and accused did not pay the outstanding amount with up to date interest inspite of several requests. After continuous follow up on the outstanding payments, towards partial payment of the outstanding liabilities and dues, the accused issued the two cheques bearing no.s(1)015438 dt:7.1.2019 for Rs.10,000/- drawn on Dena bank, Kempegowda road, (2) cheque No.089195 dt:15.3.2019 for Rs.24,000/- drawn on Canara Bank, Laggere branch, Bangalore. Which on presentation of the said cheques with their banker HDFC bank Ltd, Millers road, they were returned with an endorsements 'Exceeds arrangement' & 'Funds Insufficient' with a memo's dated 04.04.2019 & on 16.3.2019 and 10 CC.No.18537/2019 thereafter on 11.04.2019 complainant got issued a legal notice through RPAD. It is the case of the complainant that even after lapse of 15 days from the date of receipt of the notice the accused fails to pay the cheque amount. Accordingly, the complainant has filed the compliant against the accused for the offence punishable u/s 138 of N.I. Act on 24.06.2019. In the instant case PW1 was not cross examined nor any cogent evidence and relevant documents had been produced by the accused to disprove the case of the complainant.
13. In this case the complainant PW1 had deposed that accused had issued cheques Ex.P8 & 9 with his signatures Ex.P8(a) & 9(a) in discharge of his legally enforceable debt. It is pertinent to note that PW1 is not cross examined by the accused counsel disputing the signature Ex.P.8(a) & 9(a) in the disputed cheques nor the accused had lead any evidence to disprove the fact that the said signatures Ex.P8(a) & 9(a)does not 11 CC.No.18537/2019 belong to him. In view of the same, the signature of the accused Ex.P8(a) & 9(a) in the disputed cheques Ex.P8 & 9 remains undisputed and unchallenged. It can be presume that the accused had admitted his signatures on the disputed cheque.
14. At this juncture I would like discuss the ruling reported in AIR 2018 Hon'ble Supreme Court 3601 (T.P Murugan (Dead) Thr.Lrs.V Bojan AND Posa Nandhi Rep.Thr, POA Holder, T.P Murugan v. Bojan) In this ruling at para-8 the Hon'ble Supreme Court has laid down the dictum of law that u/s 139 of the N.I Act, once a cheque has been signed and issued in favour of the holder, there is statutory presumption that it is issued in discharge of a legally enforceable debt or liability by referring to K.N.Beena v/s Muniyappan and Another, (2001) 8 SCC 458, para-6 and Rangappa v/s Shrimohan (2010) 11 SCC 411, para 26 . It is further held that the presumption is a rebuttable 12 CC.No.18537/2019 one, if the issuer of the cheque is able to discharge the burden that it was issued for some other purpose like security for a loan. In the present case the accused has failed to produce any credible evidence to rebut the statutory presumption in the light of discussion made above. The complainant has proved the case by overwhelming evidence to establish that the cheques/Ex.P8 & 9 were issued by the accused towards discharge of an existing liability and legally enforceable debt.
15. In the instant case PW1 deposed that he had issued a legal notice Ex.P10 the accused requesting for payment of the outstanding balance through RPAD. On perusal of the document Ex.P10/legal notice & Ex.P10(a)/postal receipt and track consignment Ex.P11 it is crystal clear that the notice was duly served to the accused and inspite of the said notice accused has not paid the amount nor replied to the notice due remained undisputed and unchallenged. 13 CC.No.18537/2019
16. At this juncture in the light of principle laid down by the Hon'ble Apex Court of India in a decision reported in 2007 (3) Crimes 120 (SC) (C.C. Alavi Haji V/s Palapetty Muhammed & Anr), it is crystal clear that if notice sent through RPAD by correctly addressing drawer of the cheque, mandatory requirement of issue of notice in terms of (b) of proviso to u/s 138 of N.I. Act stands complied with. The evidence on record clearly establishes that the complainant sent the notice to the accused to the correct address through RPAD and the said notice is duly served to the accused as per the track consignment Ex.P11. Hence, sending legal notice to the correct address of the accused is in compliance with u/s 138(b) of N.I. Act as the dictum of law laid down in the above case. In the instant case accused neither issued reply nor paid cheque amount even after receipt of summons for the best reasons known to him. As noted supra when the matter posted for cross 14 CC.No.18537/2019 of PW1, complainant & accused jointly submitted Joint Memo stating that accused has agreed to pay a sum that accused has agreed pay a sum of Rs.35,000/- as full and final settlement and accused agreed to pay the said amount to the complainant by way of issuing a postdated cheque bearing No.672341, dated:28.01.2020 drawn on Canara Bank, Laggere Bank, Bengaluru in favour of the complainant. Further both complainant and accused submitted that they have no objections for the Court to pass the judgment in accordance to the terms mentioned in the Joint Memo.
17. In view of the same it is clearly established that accused has admitting the transactions and issuing of the cheque in discharge of his liability. Hence, in the considered view of this court, the complainant has proved that the accused has committed an offence punishable u/s 138 of N.I. Act. Hence, I answer the above point No.1 in the affirmative. 15 CC.No.18537/2019
18. Point No.2:- Having regard to the facts and circumstances, I proceed to pass the following:
ORDER The accused is found guilty for the offence punishable u/s 138 of N.I. Act.
Acting u/s 264 of Cr.P.C. the accused is convicted and sentenced to pay fine of Rs.500/-, in default shall undergo simple imprisonment for 15 days.
Acting u/s 357(3) of Cr.P.C. as per the agreement between the parties in the joint memo the accused is directed to pay a sum of Rs.35,000/- through postdated cheque bearing No.672341, dated:28.01.2020 drawn on Canara Bank, Laggere Bank, Bengaluru in favour of the complainant.
In default undergo simple imprisonment of two months.
The joint memo shall be the part and parcel of 16 CC.No.18537/2019 this order.
The bail bond executed by the accused shall stand cancelled.
Supply free copy of the judgment to the accused. (Dictated to Stenographer directly on the Computer, taken print out corrected, signed by me and then pronounced in the open court this the 16th day of January, 2020).
(ABDUL RAHIM HUSSAIN SHAIKH) XXVIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT:-
PW1 : Sri. Tinku Khemka LIST OF WITNESSES EXAMINED ON BEHALF OF THE DEFENCE:-
Nil LIST OF DOCUMENTS MARKED ON BEHALF OF THE COMPLAINANT:-
Ex.P1 : Resolution
Ex.P2 : Ledger account
Ex.P3 : Cheque
Ex.P3(a) : Signature of the accused
Ex.P4 Bank memo
Ex.P5 : Notice
Ex.P5(a) : Postal receipt
Ex.P6 : Track consignment
Ex.P7 : Complaint
17 CC.No.18537/2019
Ex.P8 & 9 : Cheques
Ex.P8(a)&
9(a) : Signature of the accused
Ex.8(b)&
Ex.P9(b) : Bank memo's
Ex.P10 : Legal notice
Ex.P10(a) : Postal receipt
Ex.P11 : Track consignment
LIST OF DOCUMENTS MARKED ON BEHALF OF THE DEFENCE:-
Nil XXVIII Addl. Chief Metropolitan Magistrate, Bengaluru. 18 CC.No.18537/2019 Judgment pronounced in the open Court vide separate order.
ORDER The accused is found guilty for the offence punishable u/s 138 of N.I. Act.
Acting u/s 264 of Cr.P.C. the accused is convicted and sentenced to pay fine of Rs.500/-, in default shall undergo simple imprisonment for 15 days.
Acting u/s 357(3) of Cr.P.C. as per the agreement between the parties in the joint memo the accused is directed to pay a sum of Rs.35,000/- through postdated cheque bearing No.672341, dated:28.01.2020 drawn on Canara Bank, Laggere Bank, Bengaluru in favour of the complainant.
In default undergo simple imprisonment of two months.
The joint memo shall be the part and parcel of 19 CC.No.18537/2019 this order.
The bail bond executed by the accused shall stand cancelled.
Supply free copy of the judgment to the accused.
XXVIII A.C.C.M, Bangaluru.