Bangalore District Court
W/O. Shri. Usman K.S vs R/At No.33 on 1 February, 2019
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
DATED THIS THE 1st DAY OF FEBRUARY, 2019
PRESENT
Sri. Shridhar Gopalakrishna Bhat, LL.B
XIV ADDL. C.M.M., BENGALURU
CASE NO C.C. NO.54008/2018
Smt. Athiya Begam
COMPLAINANT W/o. Shri. Usman K.S
Aged about 42 years, R/at No.3, K.H.
No.531, 6th Cross, H.M. Main Road, Opp :
Lababean Masjid - 560 084.
Mr. Chandra Shekar .G
S/o. Sri. Gopalappa,
Aged about 37 years,
ACCUSED R/at No.33, Nagamangala, Egghnahalli (P),
Kundona (H), Devanahalli Tq., Bengaluru
Rural - 560 110.
OFFENCE U/s.138 of Negotiable Instruments Act
PLEA OF THE
ACCUSED Pleaded not guilty
FINAL ORDER Accused is convicted
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU
2 C.C. No.54008/2018
JUDGMENT
The complainant has approached this court with the complaint under Sec.200 Cr.PC against the accused for the offence punishable under Section 138 r/w Sec.142 of Negotiable Instruments Act. (herein after referred as N.I. Act)
2. The case of the complainant is that, the accused is known to the complainant and for the purpose of his real estate business, the accused had asked the complainant for a loan of Rs.50 lakhs. The complainant trusting the accused gave Rs.50 lakhs to the accused since January 2017 to October 2017. The accused promised to return the said amount as soon as possible by arranging the funds. In pursuance of the promise made, the accused paid back the total amount of Rs.9,72,674/- on different dates. But even after much pursuance, October 2017 onwards the accused did not make payment of the balance amount of Rs.40,27,326/-. Thereafter the accused had agreed to make part payment and issued cheques bearing No.000018 dtd.16.01.2018 for Rs.22 lakhs, cheques bearing No.000007 to No.000009 and No.000012 for Rs.1 lakh each, cheques bearing No.000010, No.000011 and No.000019 for Rs.5 lakhs each, dtd.14.02.2018 in all for Rs.41 lakhs drawn on Kotak Mahindra Bank, Infantry Road, Bengaluru in favour of 3 C.C. No.54008/2018 the complainant. The complainant had presented the cheque dtd.16.01.2018 for Rs.22 lakhs for encashment through her banker -Indian Bank, Commercial Street branch, Bengaluru on 16.01.2018, but the said cheque was returned dishonoured for the reason "funds insufficient" by endorsement dated 17.01.2018. Thereafter the complainant got issued legal notice dated 12.02.2018, which was served on the accused on 15.02.2018.
3. It is further case of the complainant that the complainant had presented the remaining seven cheques for encashment through her banker -Indian Bank, Commercial Street branch, Bengaluru on 16.02.2018, but the said cheques were also returned dishonoured for the reason "funds insufficient" by endorsement dated 16.02.2018. Thereafter the complainant got issued another legal notice dated 22.02.2018, which was served on the accused on 02.03.2018. Though the said notices were served on the accused, the accused did not make any payment as demanded in the said notices and thereby intentionally committed the offence punishable U/s.138 of N.I. Act. Under these attending circumstances, the complainant is constrained to file the present complaint and accordingly prayed for conviction of the accused and for grant of compensation in her favour to meet the interest of justice and equity.
4 C.C. No.54008/20184. After filing of this complaint, cognizance was taken for the offence punishable U/s.138 of N.I. Act. Sworn statement of the complainant was recorded. This court was satisfied as to prima facie case made out by the complainant for issuance of the summons to the accused and accordingly Criminal Case was registered against the accused for the offence punishable U/s.138 of N.I. Act and summons was ordered to be issued to the accused.
5. In pursuance of the summons issued by this court, the accused has put up his appearance through his counsel and enlarged on bail. Thereafter plea was recorded. The accused has denied the substance of accusation and claimed for trial.
6. In order to prove the case of the complainant, the complainant herself examined as CW.1 and got marked as many as 28 documents as per Ex.P1 to P28. The accused has filed application U/s.145(2) of N.I. Act seeking permission for cross-examination of the complainant (CW.1) and though the said application was allowed and in spite of the repeated opportunities given including imposing cost, the accused has not opted to cross-examine the complainant and thereby cross-examination of CW.1 was taken as nil and thereby complainant side evidence is closed. Since the accused has not opted to cross-examine the complainant, in view of the decision of the Hon'ble Apex court reported in 5 C.C. No.54008/2018 (2014) 5 SCC 590 - Indian Bank Association and others Vs Union of India and others - [W.P.(civil) No.18/2013], case was posted for defence evidence. In spite of the opportunities given, the accused has not opted to place any evidence on his behalf and as such defence evidence is also taken as nil and thereby evidence of the parties concluded.
7. The learned counsel for the complainant filed written argument. The counsel for the accused has not opted to address any argument and even there was no representation for accused and as such the argument on behalf of the accused is taken as nil.
8. On perusal of the entire material available on file along with the written argument filed, the points that would arise for consideration are:-
1) Whether the complainant proves that the accused had issued eight cheques in question in discharge of the legally recoverable debt as contended?
2) Whether the complainant further proves that the accused has committed the offence punishable under Section 138 of Negotiable Instrument Act?
3) Whether the complainant is
entitled for the relief as prayed in
the complaint?
6 C.C. No.54008/2018
4) What Order?
9. The above points are answered as under;
Point Nos.1 and 2 : In affirmative,
Point No.3 : In affirmative,
Point No.4 : As per the final order,
for the following.......
REASONS
10. Point Nos. 1 and 2 : Since these points are
inter linked and to avoid repetition they are taken together for discussion. As already stated in support of the claim of the complainant, the complainant her sworn statement reiterated the complaint averments in toto which itself is treated as examination-in-chief in view of the decision of the Hon'ble Apex Court reported in (2014) 5 SCC 590 - Indian Bank Association and others Vs Union of India and others -
[W.P. (civil) No.18/2013]. In addition to that, the complainant has produced cheque dtd.16.01.2018, bank endorsement dtd.17.01.2018, office copy of the legal notice dtd.12.02.2018, postal receipt dtd.12.02.2018 for having sent the said notice, track consignment to show the service of notice on the accused, remaining seven cheques and concerned bank endorsements, office copy of the legal notice dtd.22.02.2018, postal receipt dtd.22.02.2018 for having sent the said notice, track consignment to show the 7 C.C. No.54008/2018 service of notice on the accused as per Ex.P1 to P22 respectively. The complainant has also filed certificate U/s.65-B of the Evidence Act relating to postal track consignment. In addition to that the complainant has also produced 11 challans for having paid amount to the accused as per Ex.P23, five passbooks relating to her account as per Ex.P24, passbook relating to joint account of the sister of the complainant and her husband as per Ex.P25, the passbook relating to joint account of the complainant and her daughter as per Ex.P26, statement of account/receipt issued by Muthoot Finance as per Ex.P27 and 30 e-Mail message print out with certificate U/s.65-B of Indian Evidence Act as per Ex.P28 respectively. The contents of Ex.P1 to P28 are analyzed, they clearly support the version of the complainant. The contents of Ex.P23 to P26 are analyzed, they support the version of the complainant as to payment of the amount by the complainant to the accused. The contents of Ex.P28 reveal that even the complainant has taken amount from the Muthoot Finance. The contents of e- mail message again support the version of the complainant as to due amount from the accused as claimed by her.
11. In addition to the above documents, the contents of Ex.P1, P6, P8, P10, P12, P14, P16 and P18 -cheques, the contents of Ex.P2, P7, P9, P11, P13, P15, P17, P19-bank endorsements are analyzed, it is clear that the accused had 8 C.C. No.54008/2018 issued cheque dtd.16.01.2018 for Rs.22 lakhs, four cheques dtd.14.02.2018 for Rs.1 lakh each, three cheques dtd.14.02.2018 for Rs.5 lakhs each in favour of the complainant and in all for Rs.41 lakhs and Ex.P1-cheque was dishonoured for the reason "funds insufficient" as per memo dtd.17.01.2018 and other seven cheques were dishonoured for the same reason on 16.02.2018 as put up by the complainant. Further the contents of Ex.P3 and P20- legal notices dtd.12.02.2018 & 22.02.2018, Ex.P4 and Ex.P21- postal receipts dtd.12.02.2018 and 22.02.2018 and Ex.P5 and Ex.P22 i.e postal track reveal that after dishonour of the cheque as found in Ex.P2, the complainant got issued legal notice as per Ex.P3 and the same was delivered on the accused on 15.02.2018 as found Ex.P5. Similarly after dishonour of remaining seven cheques on 16.02.2018, the complainant got issued legal notice as per Ex.P20 and the same was delivered on the accused 02.03.2018 as found in Ex.P22. The complainant presented the complaint before this court on 31.03.2018 i.e after lapse of 15 days from the date of service of two notices and within 30 days thereafter as required under law. Hence on perusal of these aspects, it is clear that the complainant had presented the cheques within its validity and got issued statutory notice to the accused within statutory time and filed the complaint within the prescribed period as provided U/s.138 of N.I. Act.
9 C.C. No.54008/201812. Admittedly in spite of issuance of notices, the accused had not complied with the demand made in the said notices. Therefore, on going through these documents their remains no doubt that the complainant had complied with all the technical requirements of Sec.138 of N.I. Act in filing the present complaint. Though the accused has put up his appearance through his counsel and denied the substance of acquisition, the accused has not opted to dispute the case of the complainant in any angle. As already stated the accused has not opted to cross-examine CW.1 and thereby the evidence of CW.1 remained unchallenged. The case of the complainant remained totally unchallenged. There are no grounds to disbelieve the case of the complainant as to existence of legally recoverable debt and also issuance of cheques by the accused towards discharge of due amount in favour of the complainant as put up by the complainant. The statutory presumptions provided under Sec.118 and 139 of N.I. Act is also in favour of the complainant. Hence, it is clear that the complainant has proved all the necessary ingredients of Sec.138 of N.I. Act and thereby the commission of the offence punishable under the said section as contended. Absolutely there are no reasons to disbelieve the case of the complainant. Therefore on the basis of the material available on file, it is crystal clear that the complainant has successfully proved that in order to discharge legally recoverable debt, the accused had issued 10 C.C. No.54008/2018 cheques and complied with all necessary ingredients of the offence punishable under Sec.138 of N.I. Act and thereby the commission of the offence by the accused as contended. Therefore Point Nos.1 & 2 are required to be answered in affirmative and answered accordingly.
13. Point No.3: As discussed in connection with Point Nos.1 & 2, the complainant has proved her case as to commission of the offence punishable U/s.138 of N.I. Act by the accused. The punishment prescribed for the said offence is imprisonment for a period which may extent to two years or with fine which may extend to twice the amount of the cheque or both. Considering the facts and circumstances of this case, nature, year of the transaction, nature of the instrument involved, provisions of Sec.117 of N.I. Act, cost of litigation etc., this court is of the considered view that it is just and desirable to impose fine of Rs.48,20,000/- and out of the said amount a sum of Rs.5,000/- has to be remitted to the State and the remaining amount of Rs.48,15,000/- is to be given to the complainant as compensation as provided U/s.357(1) of Cr.PC and accordingly Point No.3 is answered in Affirmative.
14. Point No.4: For the reasons discussed in connection with Point Nos.1 to 3 this court proceed to pass the following......
11 C.C. No.54008/2018ORDER Acting under Section 255(2) of Cr.PC accused is hereby convicted for the offence punishable under Sec.138 of N.I. Act. The accused shall pay a fine of Rs.48,20,000/- for the offence punishable under Sec.138 of N.I. Act. In default of payment of fine amount, the accused shall under go simple imprisonment for a period of one year.
By exercising the power conferred U/s.357(1) of Cr.PC out of total fine amount of Rs.48,20,000/-, a sum of Rs.48,15,000/- is ordered to be paid to the complainant as compensation and Rs.5,000/- is ordered to be remitted to the State.
The bail bond of the accused stands cancelled. The cash security is deposited by the accused is ordered to be continued till expiry of the appeal period.
Supply the free copy of this judgment to the accused.
(Typed to my dictation by the stenographer, directly on computer, corrected, signed and then pronounced by me in the open court on this the 1st day of February, 2019) (SHRIDHAR GOPALAKRISHNA BHAT) XIV ADDL. C.M.M., BENGALURU 12 C.C. No.54008/2018 ANNEXURE Witnesses examined for the complainant:
CW.1 : Smt. Athiya Begam
Witnesses examined for the defence:
NIL
Documents marked for the complainant:
Ex.P1, P6, P8, P10, P12, P14, P16 & P18 : Eight cheques
Ex.P2, P7, P9, P11, P13, P15, P17 & P19 : Bank endorsements
Ex.P3 : Office copy of the Legal notice
Ex.P4 : RPAD receipt
Ex.P5 : Track consignment
Ex.P20 : Legal notice
Ex.P21 : RPAD receipt
Ex.P22 : Track consignment
Ex.P23(a) to (r) : Deposit/pay in slips (11 in numbers)
Ex.P24(a) to (e) : Bank passbooks (5 in numbers)
Ex.P25 : Bank passbook
Ex.P26 : Bank passbook
Ex.P27 : Copy of e-mail message
Ex.P28 : Statement of account
Documents marked for the defence:
NIL
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU