Bangalore District Court
Company Nagaraj K Pujar Examined As Pw1 ... vs Denied The Incriminating Evidence ... on 30 June, 2018
IN THE COURT OF THE XLII ADDL.CHIEF METROPOLITON MAGISTRATE,
NRUPATHUNGA ROAD, BANGALURU CITY
Dated this the 30th day of June, 2018
Present:-
Present:- ABDUL RAHIM HUSSAIN SHAIKH
B.Sc, B.Ed, LLB(Spl)
XLII A.C.M.M
Bengaluru City.
CC.No. 27242/2016
JUDGMENT U/S 355 OF Cr.P.C.
1. Sl.No. of the case : CC.No. 27242/2016
2. The date of commence of evidence: 16.04.2018
3. The date of Institution : 26.09.2016
4. Name of the Complainant : M/s Mahindra Rural Housing Finance
Limited, A Registered Company is
Having its Regd Office at Mahindra
Towers, P.K Kurne Chowk, Worli,
Mumbai-400 018, Maharashtra-India,
And Regional Office at No.62,
2nd Floor, High Street,
11th Main road, 4th Block,
Jayanagar, Bengaluru-560011.
Rept by its litigation Manager,
Mr. Eshwarappa. H.K.
5. Name of the Accused : KORI LOKESH
C/o K. Parthanna
181, Bellary, Kammarchedu,
2 CC.No.27242/2016
Bellary- 583138.
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 : 30.06.2018
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 public limited Company engaged in the business of extending financial facility. Accused had applied for Home Loan Finance Facilities and the same was issued to him under Loan agreement No.XRESBLL00061968 and the accused had agreed to abide by the terms and conditions. The accused had availed the said facility, utilized the same and towards full and final discharge of payment of liability towards the loan borrowed by him issued cheque bearing No.003561 dated 05.07.2016 for on amount of Rs.1,27,402/- drawn on Allahabad Bank. The said cheque was presented for encashment through its banker, however, it was returned with an endorsement 'funds insufficient' with a memo dated 3 CC.No.27242/2016 19.07.2016. Thereafter on 05.07.2016 complainant got issued a legal notice through RPAD and it was served on 12.08.2016.
According to the complainant, the accused has committed an offence punishable u/s 138 of N.I. Act. Accordingly the complainant filed the complaint on 26.09.2016.
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 is sufficient material, plea was recorded against the accused on 03.07.2017 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 Power of Attorney of the complainant Company Nagaraj K Pujar examined as PW1 and got marked Ex.P1 to P7 and closed the side. Then the statement u/s 313 Cr.P.C came to be recorded on 24.04.2018, wherein the incriminating evidence appearing against the accused was read over and explained. Accused denied the incriminating evidence readover to him. Accused neither examined nor got marked any documents on his behalf.
5. Heard the arguments and perused the records.
6. On the basis of the above facts, the following points arise for my consideration:
4 CC.No.27242/2016
1) Whether the complainant proves that the accused towards discharge legal recoverable debt issued cheque No.003561 dated 05.07.2016 for Rs.1,27,402/- drawn on Allahabad Bank in favour of complainant, on presentation for encashment it was returned as 'Funds Insufficient' and in spite 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?
7. 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:
REASONS
8. Point No.1:-
No.1 In order to prove the case, the General Power of Attorney of the complainant Company Sri. Nagaraj Pujar filed affidavit in lieu of examination-in-chief and has examined as PW1. He has reiterated the allegations made in the complaint on oath. He also got marked documents Ex.P1 to P7. Ex.P1 is the cc of power of attorney, Ex.P2 is the cheque, Ex.P2(a) is the signature of the accused, Ex.P3 is the bank memo, Ex.P4 is the office copy of the legal notice, Ex.P4(a) is the postal receipt, Ex.P4(b) is the postal acknowledgment, Ex.P5 is the certificate u/s 65 (b), Ex.P6 is the statement of account, Ex.P7 is the complaint. Accused not challenged the oral and documentary evidence produced by the complainant.5 CC.No.27242/2016
9. Even accused neither entered the witness box nor got marked any documents.
10. It is the definite case of the complainant that the accused availed the Home Loan finance facility from the complainant company. Towards the discharge of liability accused issued disputed cheque in favour of complainant. On presentation said cheque for encashment, the cheque was dishonoured and even after receipt of legal notice accused fails to pay the cheque amount. The complainant reiterated the complaint allegations and got marked seven documents. As noted supra the accused not challenged the said oral and documentary evidence. The ingredients of section 138 and 142 of N I Act are duly complied.
11. It is equally important to note that prior to filing of the complaint the accused got issued legal notice as per Ex.P4. The postal receipt is produced at Ex.P4(a), the postal acknowledgment is produced at Ex.P4(b). It is material to note that as per Ex.P4(b)/acknowledgment given by the post office the article delivered to the address on 12.08.2016. It is pertinent to note that the signature on the Ex.P4(b)/acknowledgment clearly resembles with the signature on the Ex.P2/cheque issued by the accused and same is not disputed by the accused by leading cogent evidence. Further there is no evidence from the accused denying the address on the legal notice 6 CC.No.27242/2016 and service of the said legal notice in person. The evidence on record reveals that the Ex.P4/legal notice was sent to the correct address of the accused.
12. 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), 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. To disprove the said fact accused has not produced material evidence.
13. Therefore, sending legal notice to the correct address of the accused is in compliance with u/s 138(b) of N.I. Act is complied by the complainant. Admittedly accused has not repaid the cheque amount and if really accused is not due to pay the amount claimed in the cheque, he could have issued the reply notice or paid the cheque amount at least after service of summons of this case. In the instant case accused neither issued reply not paid cheque amount even after receipt of summons for the best reasons known to him.
14. Non-initiating the legal action for alleged misutilization, non- intimating to his banker and non-issuance of reply are the strongest 7 CC.No.27242/2016 circumstances to draw inference against the accused. As noted supra it is settled that the presumption has to be rebutted by cogent proof and not by a bare explanation which is merely plausible. On appreciation of material on record in the considered opinion of this Court, the evidence placed on record by the accused is not sufficient to rebut presumption. Hence, it cannot be said that the accused has rebutted the presumption.
15. The word 'unless unless contrary is proved' is discussed by the Hon'ble Apex Court in a decision reported in 2011 Crl.L.J 4647 (SC). It is observed that "the accused is under the obligation to prove his case case in trial by leading cogent evidence that there was no debt or liability to the satisfaction of the Court". 'Unless contrary is proved' means the presumption has to be rebutted by proof and not by a bare explanation which is mere plausible. The said fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that the reasonable man could act on the supposition that is exist. Therefore, unless explanation is supported by proof, the presumption created by the provisions cannot be said to be rebutted. Accordingly, I have no hesitation to arrive at the conclusion that accused has utterly failed to rebut the presumption.
8 CC.No.27242/2016
16. In this case, the court has to peruse whether mandatory requirements of Sec.138 and 142 of N.I. Act are complied with or not to take cognizance of complaint for the commission of crime punishable u/s 138 of N.I. Act. It should be ascertained from the date of issuance of cheques, presentation of cheque, communication of Bank endorsements, issuance of legal notice for payment of cheques amount, service of notice and date of institution of complaint. Ex.P2/cheque is dated 05.07.2016 and presented to the bank for encashment and received the intimation of dishonour of cheque for the reasons 'funds insufficient' as per Ex.P3 dated 19.07.2016. On 05.08.2016 complainant got issued Ex.P4/legal notice. The complainant presented the complaint on 26.09.2016. It is evident that the cheque presented for encashment within the validity time, notice demanding the cheque amount and filing of complaint before the court after service of notice are within the period of specified by law.
17. On appreciation of entire evidence, this court is of the opinion that the accused has not challenged the oral and documentary evidence produced by the complainant. Accused has miserably fails to prove the fact that he has not issued cheque for discharge of legally enforceable debt. On the contrary, the complainant has proved that the accused has issued Ex.P2/cheque for a sum of Rs.1,27,402/- 9 CC.No.27242/2016 towards discharge of legally enforceable debt and on presentation of the cheque, it was dishonored for the reasons 'funds insufficient'. Even after service of legal notice, the accused has not paid the cheque amount. 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.
18. Point No.2:-
No.2 From the material on record, it appears that the accused is aged about 40 years and doing coolie work. Considering the age, avocation of accused and quantum of the cheque, if the accused is sent to jail, it would cause problem to the accused as well as to his family members. Having regard to the facts and circumstances, prevailing rate of interest in the nationalized Bank and litigation expenses, I proceed to pass the following:
ORDER The accused is found guilty of the offence punishable u/s 138 of N.I. Act.
Acting u/s 264 of Cr.P.C. the accused is hereby convicted and sentenced to pay fine of Rs.1,30,000/-, in default shall undergo simple imprisonment for three months.
Out of fine amount of Rs.1,30,000/- a sum of Rs.1,28,000/- is ordered to be paid to the complainant towards compensation u/s 357 10 CC.No.27242/2016 of Cr.P.C. and the balance amount of Rs.2,000/- shall be remitted to the State.
The bail bond & surety 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 30th day of June, 2018) (ABDUL RAHIM HUSSAIN SHAIKH) XLII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT:-
PW1 : Sri. Nagaraj Pujar LIST OF WITNESSES EXAMINED ON BEHALF OF THE DEFENCE DEFENCE::- -Nil-
COMPLAINANT:-
LIST OF DOCUMENTS MARKED ON BEHALF OF THE COMPLAINANT Ex.P1 : C/c of letter of authority Ex.P2 : Cheque Ex.P2(a) : Signature of the accused Ex.P3 : Bank Memo Ex.P4 : Office copy of the legal notice Ex.P4(a) : Postal receipt Ex.P4(b) : Postal acknowledgement Ex.P5 : Certificate u/s 65(B) of the Indian Evidence Act Ex.P6 : Statement of account Ex.P7 : Complaint LIST OF DOCUMENTS MARKED ON BEHALF OF THE DEFENCE:-
DEFENCE -Nil-
XLII Addl. Chief Metropolitan Magistrate, Bengaluru.11 CC.No.27242/2016
12 CC.No.27242/2016 Judgment pronounced in the open Court vide separate order.
ORDER The accused is found guilty of the offence punishable u/s 138 of N.I. Act.
Acting u/s 264 of Cr.P.C. the accused is hereby convicted and sentenced to pay fine of Rs.1,30,000/-, in default shall undergo simple imprisonment for three months.
Out of fine amount of Rs.1,30,000/- a sum of Rs.1,28,000/- is ordered to be paid to the complainant towards compensation u/s 357 of Cr.P.C. and the balance amount of Rs.2,000/- shall be remitted to the State.
The bail bond & surety bond executed by the accused shall stand cancelled.
Supply free copy of the judgment to the accused.
XLII A.C.C.M, Bangaluru.