Bangalore District Court
Finance Co.Pvt.Ltd vs Herein Stood As A Guarantor To Above ... on 20 November, 2021
IN THE COURT OF THE VI ADDL. SMALL CAUSES JUDGE
& XXXI ADDL. CHIEF METROPOLITAN MAGISTRATE,
BENGALURU CITY
C.C. NO: 25575/2015
Present: Smt. Shainey K.M.
BAL.,LL.B.,
6 Addl. Judge, Court of Small
th
Causes and ACMM, Bengaluru.
Dated: On this 20th day of November, 2021.
JUDGMENT U/S 355 OF CR.P.C. 1973.
1. Sl.No. of the Case : C.C.No.25575 of 2015
2. The date of commission : 15.10.2015
of the offence
3. Name of the : Sree Gokulam Chits &
Complainant
Finance Co.Pvt.Ltd.,
Having its registered
office at No.66, Arcot Road,
Kodambakam,
Chennai and having its
Branch office at
Mangalam Chambers.
1st Floor, No.25, K.H. Road,
Bangalore-85.
SCCH-2 2 C.C. 25575/2015
Rep. by its K.H. Road
Branch G.P.A. holder & legal
Clerk Raja H.M., Major.
(By Sri. B.N. Ravishankar,
Advocate)
4. Name of the Accused : Asif Pasha,
No.5/1, Thakur Complex,
Pillappa Lane,
Nagarathpet Cross,
Bangalore-560 002.
(By Sri. Pape Gowda, Advocate)
5. The offence complained : Under Section 138 of the
of or proves Negotiable Instrument Act.
6. Plea of the accused and : Pleaded not guilty.
his examination
7. Final Order : Accused is acquitted.
8. Date of such order for : 20.11.2021
the following
SCCH-2 3 C.C. 25575/2015
JUDGMENT
This complaint is filed by the complainant against the accused under Sec.200 of Cr. P. C. for the offence punishable under Section 138 of the Negotiable Instruments Act. Cognizance of the offence was taken on presentation of the private complaint by the Hon'ble 13th ACMM, Bengaluru and ordered to register the criminal case, as there were prima facie materials to proceed against the Accused. During the stage of trial this case has been withdrawn and transferred to this court as per notification no: ADM I (A) 6/14 dtd:
30.5.2014 of Hon'ble CMM, Bangalore.
02. It is contended that, complainant is a company registered under Companies Act 1956, having its registered office at No.25, K.H. Road, Bengaluru and it is engaged in Chits and Finance Business. One Akbar S., was the member of the chit with the complainant's SCCH-2 4 C.C. 25575/2015 company and he subscribed chit bearing No.G2H/2053 and Ticket No.12 and accused is surety/guarantor of aforesaid Akbar S. It is contended that, aforesaid Akbar S. being a successful bidder of aforesaid has received the prize amount from the complainant's company and accused herein stood as a guarantor to above Akbar S. It is alleged that, aforesaid Akbar S. has become chronic defaulter to both subscribed chit and surety holder chit to pay monthly installment to complainant after receiving the amount. Inspite of repeated demands and request, aforesaid Akbar S., and accused herein both have failed to pay the chit amount to the complainant. Thereafter in the month of July-2013, the accused issued complainant a cheque bearing No.466848 dated:10.07.2013 for Rs.1,96,712/- drawn on Indian Bank, Avenue Road Branch for the payment of chit amount.
SCCH-2 5 C.C. 25575/2015
03. On presentation of cheque, through his banker, it is returned with an endorsement stating funds insufficient on 23.09.2013. Thereafter, the complainant got issued legal notice on 22.10.2013 through RPAD, as contemplated under Section 138(b) of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the NI Act"), to the accused to make payment of the cheque amount and same is returned unclaimed. It is stated that, notice sent to accused through ordinary post was duly served on him. Despite due knowledge of issuance of notice and dishonour of cheque, accused failed to pay the amount covered under the cheque within statutory period of notice of demand. Hence, this complaint.
04. On being served the summons, the accused appeared through his counsel and he was released on bail. Plea of the accused was recorded by explaining the substances of accusation. Accused pleaded not guilty SCCH-2 6 C.C. 25575/2015 and claims to be tried. The Accused filed application under Section 145(2) of N I Act, seeking permission to cross-examine Complainant and to proceed in accordance with Law. Accordingly, the application is allowed and the Accused is permitted to cross-examine Complainant/PW-1.
05. In proof of the contention, Sri. V. Naveen Kumar, the G.P.A. Holder of complainant was examined as Pw:1, by filing affidavit in lieu of examination in chief and exhibits were marked as Exs.P.1 to P.10. The G.P.A. holder of complainant did not tender himself for cross examination in spite of sufficient opportunity. Hence, cross-examination of PW-1 was taken nil and closed complainant's side evidence.
06. After closure of complainant's side evidence, statement of the accused as required U/Sec.313 of Cr.P.C. has been recorded and explained incriminating SCCH-2 7 C.C. 25575/2015 evidence appearing against him. The accused has denied the contents of statement as false and adduced defence evidence.
07. To prove his defence, accused was examined as D.W.1. Since the complainant constantly remained absent before the court, the cross-examination of D.W.1 was taken as nil. Despite of sufficient opportunity, the complainant not submitted his argument and therefore, argument of complainant was taken as nil, however liberty was given to him to file written argument.
08. Heard the arguments of accused. Perused the materials placed on record. Now following points that arise for my consideration;
POINTS
1. Whether complainant proves beyond all reasonable doubt that accused has committed an offence punishable under Section 138 of Negotiable Instruments Act?
SCCH-2 8 C.C. 25575/2015
2. What order?
09. My findings to the above points are:
Point No.1 : In the Negative Point No.2 : As per the final order for the following;
REASONS
10. POINT NO.1: In proof of the complainant's contention Sri. V. Naveen Kumar, the G.P.A. Holder of complainant was examined as PW1, who filed affidavit evidence in lieu of examination in chief. In chief examination affidavit PW:1 has deposed in consonance with the averments of the complaint. In chief examination affidavit, PW:1 has deposed that, one Akbar S., was the member of Chit with the complainant company and he was subscriber of the chit bearing No.G2H/2053 and Ticket No.12. He further deposed that, aforesaid Akbar S., being the successful bidder has received the prize amount from the company and the SCCH-2 9 C.C. 25575/2015 accused has stood as guarantor. It is deposed that, aforesaid Akbar S., has failed to pay the monthly installment of chit amount and the accused being the guarantor of aforesaid subscriber has issued cheque in question for payment of Rs.1,96,712/- which is produced and marked at Ex.P.4. Accordingly, PW-1 has presented the said cheque for encashment and the same was returned unpaid as 'Insufficient funds" as per the Bank Memo's produced at Ex.P.5. Hence, he got issued legal notices through RPAD, which is produced at Ex.P.6. The notice issued through RPAD vide returned with an endorsement stating "unclaimed", the postal cover is marked at Ex.P.7 and ExP:7(a) is original notice sent to the accused. Ex.P.6(a) is the postal receipt in respect of legal notice.
11. To prove the alleged chit transaction between the complainant and Akbar S., P.W.1 has produced the certificate of incorporation at Ex.P.1 and minutes of SCCH-2 10 C.C. 25575/2015 Board Meeting at Ex.P.2. The complainant has given authority to P.W.1 to give evidence and executed G.P.A. to said Sri. Naveen Kumar V., as per Ex.P.3. Ex.P.8 is the monthly ledger extract in respect of Akbar S. showing outstanding balance payable him was Rs.1,96,712/- as on 27.07.2013. Ex.P.9 is the Form No.1 duly signed by accused herein and aforesaid Akbar S. Ex.P.10 is the Advance Receipt.
12. On perusal of oral and documentary evidence placed by the complainant, it reveals that the complaint is filed well within time in accordance with the provisions of Negotiable Instruments Act. Moreover, there is no dispute with regard to taking cognizance of the offence punishable under Section 138 of N I Act.
13. The accused has denied the issuance of cheque in dispute and liability to pay the amount mentioned in cheque. In the present nature of cases the court has to SCCH-2 11 C.C. 25575/2015 determine whether version of complainant is true or the theory put-forth by the accused is true?.
14. At the outset, an essential ingredient of Section 138 of N I Act is that the cheque in question must have been issued towards legally enforceable debt. Under Section 118 of the Act, a presumption shall be raised regarding consideration, date, transfer, endorsement and regarding holder in the case of negotiable instruments. Even under Section 139 of the Act, a rebuttable presumption shall be raised that, the cheque in question was issued regarding discharge of legally enforceable debt. These presumptions are mandatory provisions that are required to be raised in case of negotiable instruments.
15. Keeping in mind the position of law as stated supra, let me deviate to appreciate the evidence of PW-
1. It is relevant to point out that, in spite of sufficient opportunity the complainant did not tender himself for SCCH-2 12 C.C. 25575/2015 cross examination. Hence, Cross examination of PW:1 was taken as nil.
16. The complainant despite production of documents at Exs.P1 to P10, he did not appear to tender himself for cross examination so as to prove his contention. This appears that, the contention of the complainant is not genuine. Therefore, an adverse inference has to be drawn that, there is no legal liability on the part of the accused.
17. As appreciated herein above the complainant has failed to put forth his case with material documents as well failed to tender him for cross examination. Under these circumstances, it is relevant to note that, there is no legally enforceable debt as contended by the complainant. Hence, the complainant has utterly failed to prove that the cheque in question was issued towards legally recoverable debt and thereby the accused had committed an offence punishable under SCCH-2 13 C.C. 25575/2015 Sec.138 of the N.I. Act. In the circumstance, I hold the above point in the Negative.
18. Point No.2: In view of the finding on the point No.1, I proceed to pass following:
ORDER Acting under Section 255(1) of Cr.P.C. the accused is hereby acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
The bail bond and surety bond of the accused is hereby stand cancelled.
(Directed to the stenographer on laptop, typed by her, corrected, print out taken, signed, then pronounced by me in open court on this the 20th day of November, 2021) (SHAINEY.K.M ) VI Addl. Small Causes Judge & XXXI ACMM, Bengaluru.
:ANNEXTURE:
LIST OF WITNESSES EXAMINED BY THE COMPLAINANT P.W.1 : Sri. V. Naveen Kumar.SCCH-2 14 C.C. 25575/2015
LIST OF DOCUMENTS MARKED ON BEHALF OF COMPLAINANT:
Ex.P.1 : Certificate of Incorporation of complainant.
Ex.P.2 : Certified copy of Board Resolution of of complainant.
Ex.P.3 : Certified copy of GPA issued by complainant to P.W.1.
Ex.P.4 : Original Cheque dtd:10-07-2013
Ex.P.4(a) : Signatures of accused.
Ex.P.5 : Cheque return memo dt:23-09-2013
Ex.P.6 : Copy of legal notice dt:22-10-2013
Ex.P.6(a) : Postal Receipt.
Ex.P.7 : Returned Postal Cover.
Ex.P.7(a) : Returned Legal notice.
Ex.P.8 : Chit Account Statement of Akbar S.
Ex.P.9 : Surety Form executed by Akbar S.
Ex.P.10 : Voucher for receiving chit amount by
Akbar
LIST OF WITNESSES EXAMINED BY THE ACCUSED D.W.1 : Sri. Asif Pasha.
LIST OF DOCUMENTS MARKED ON BEHALF OF ACCUSED:
- Nil -
(Shainey. K.M.) VI Addl. Small Causes Judge & XXXI ACMM, Bengaluru.