Bangalore District Court
Smt. Shobha vs G.Krishna on 30 June, 2015
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITON
MAGISTRATE, BANGALORE CITY
Dated this the 30th day of June, 2015
PRESENT: SRI. NAGARAJEGOWDA.D, B.Com., LL.B.,
XXII Addl.C.M.M., Bangalore City.
JUDGMENT U/S 355 OF Cr.P.C.
Case No. : C.C No. 25018/2012
Complainant : Smt. Shobha.
Wife of K.R.Anup Kumar
Aged about 40 years,
No, 40, Chamundeshwari
Nursery, 2nd cross,
Jaraganahally,
Rajeev Gandhi Road,
Bangalore - 560 070.
(By Sri.M.H.Sawkar, Adv.)
Accused : G.Krishna.
Present Resident Address:
No.2, Lakshmi Nivasa,
3rd Main Road, 1st cross,
Nagasandhra,
Bangalore - 560 028.
Permanent Resident Address:
# 5, 15th Main Road,
Sakamma Garden,
BAsavanagudi,
Bangalore 560 004.
(By Sri.Harsha kumar., Adv.)
Date of Institution :18-10-2012.
Offence complained of :U/s 138 of N.I.Act.
Plea of the accused :Pleaded not guilty.
2 C.C.No.25018/2012
Final Order :Accused is Convicted.
Date of Order :30-06-2015.
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.
REASONS
2. The accused was introduced to complainant through his
sister Mallikamma in the year , 2007 and at that time, the accused
stated that he was involved in real estate business and if any
properties required by the complainant asked her to approach him.
In the year, 2009 the complainant had planned to buy a site and in
continuation of the same the complainant came in contract with
the accused, after discussion accused assured that a suitable
immovable property would be searched. Believing the assurance of
the accused and after discussion the accused furnished a copy of
certain deeds relating to immovable properties assuring to place
document of certain other properties and demanded for some
money from the complainant, accordingly complainant totally paid
a sum of Rs.4,50,000/- on different date by arranging amount
from her savings from tailoring income and availing gold loan.
Some of the properties shown to the complainant were not satisfied
to complainant, later accused assured to search suitable property
3 C.C.No.25018/2012
to the complainant as per her wish. However the accused did not
secure immovable with clear title as required by complainant. After
repeated request of the complainant to refund the same, during the
last week of May , 2012 the accused issued a cheque for sum of
Rs.4,50,000/- cheque No.003883 dtd 1-6-2012 with a promise to
honour. Accordingly, the complainant presented the said cheque
through Central Bank of India, Jaraganahalli Branch, for
encashment. But the said cheque returned unpaid with an
endorsement to that effect "Funds insufficient" as per
endorsement dated 9-8-2012. Thereafterwards, the complainant
brought to the notice of accused but there is no proper reply from
him. Hence, the complainant got issued legal notice through her
counsel to the accused on 6-9-2012, calling upo the accused to
pay the cheque amount . The notice was served to the residential
address of the accused through RPAD. But the said notice
returned with remarks "unclaimed" on 12-9-2012 and another
notice returned with shara "no such person" . Inspite of it, the
accused did not choose to reply or comply the notice and thus
accused has committed offence punishable u/s.138 of NI Act and
punish the accused in accordance with law and to award the
double the cheque amount in accordance with law , in the interest
of justice and equity.
4 C.C.No.25018/2012
3. Accused appeared and contest this case and denied the
entire case of complainant at the time of recording Plea of
Accusation. In support of the case of complainant, she adduced
her oral evidence by way of affidavit as PW-1 and got marked
Ex.P1 to P-9 . Inspite of sufficient opportunity has been given, the
accused counsel did not chose to cross-examined PW-1 . Hence,
the cross-examination of PW-1 taken as NIL and thus complainant
closed her side of evidence.
4. Thereafterwards, the case is posted for recording
statement of accused u/s.313 of Cr.P.C. . Accused remained
absent and not available for recording his statement. Since the
alleged offence is only a summary trial, hence this court dispensed
the recording of accused statement u/s.313 of Cr.P.C.
5. I have heard the arguments of complainant counsel on
merit and the counsel for accused remained absent and hence,
their side argument taken as NIL.
6. In order to prove the case of complainant, the complainant
adduced her oral evidence filed by way of affidavit as PW-1 and got
marked Ex.P1 cheque alleged to be issued by the accused and
identified the signature of accused as per Ex.P1(a). The said
cheque is dishonoured due to "Funds insufficient" as per Ex.P2
endorsement issued by the bankers. Ex.P3 is the copy of legal
5 C.C.No.25018/2012
notice. This notice does not contains the signature of the
complainant. The notice has been sent to the accused as per Ex.P4
and 5 are the postal receipts. The said notice remained unserved
with postal shara " insufficient address, no such person in the
address" as stated in the postal cover. But the complainant
contended that legal notice returned unserved "not claimed" by the
accused. But endorsement reveals that , it is not so. On this
background, the complainant has not properly served legal notice
to the accused. Ex.P8 is the agreement dtd. 14-6-2006 taken
between the G.Pushpa and Aralappa . Further got marked Ex.P9 is
the certified copy issued by the Rural Development and Self
Employment Training Institute, Shivalli, Udupi stating that the
complainant has successfully completed training program on
Dress Designing for women .
7. On the basis of the said documentary evidence though the
accused contests this case but inspite of sufficient opportunity has
been given, his counsel did not chose to cross-examined the PW-1
and hence, the evidence of PW-1 coupled with documentary
evidence are remains unchallenged. The accused did not appeared
before court for recording accused statement u/s.313 of Cr.P.C.
and also he did not chose to lead his side defence evidence and
hence, recording of 313 Cr.PC. accused statement has been
dispensed with as the alleged offence is only a summary trial. The
6 C.C.No.25018/2012
accused and his counsel failed to address their arguments. Hence,
their side arguments taken as NIL. Under these circumstances, the
complainant had proved the alleged guilt of the accused beyond all
reasonable doubt. The accused is liable for conviction. The
complainant is not claiming any interest on the cheque amount.
Hence, in view of these facts and circumstances, the complainant
is entitled to compensation only to the extent of cheque amount
alongwith simple interest @ 6% P.A.. Accordingly, I proceed to pass
the following:
ORDER
Acting u/s 265 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.2,000/- (Rs.Two thousand only) in default, to undergo S.I. for 01 month.
The complainant is awarded Rs.4,50,000/-(Rs.Four lakhs fifty thousand ) as compensation with simple interest @ 6% P.A. from the date of cheque till realization of the cheque amount and same shall be paid to the complainant within the period of 30 days from this date of this order. In default of payment of compensation amount , the accused shall undergo S.I. for a period of six months.
7 C.C.No.25018/2012
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 30th day of June, 2015) (NAGARAJEGOWDA.D) XXII Addl. Chief Metropolitan Magistrate, Bangalore City.
ANNEXURE Witnesses examined for the Complainant:
PW.1 Shobha Witness examined for the accused:
NIL List of Documents marked for the Complainant:
Ex.P1 Cheque Ex.P1a Signature of accused Ex.P2 Endorsement Ex.P3 Legal notice Ex.P4 &5 Postal receipts Ex.P6 &7 RPAD postal covers Ex.P8 Agreement.
List of Documents marked for the accused:
NIL XXII ACMM, Bangalore. 8 C.C.No.25018/2012