Bangalore District Court
After Obtaining The Chit Prized Money ... vs Has Failed To Pay The Monthly Chit ... on 28 January, 2019
IN THE COURT OF THE XLII ADDL. CHIEF
METROPOLITON MAGISTRATE NRUPATHUNGA ROAD,
BENGALURU CITY
Present:- Sri. ABDUL RAHIM HUSSAIN SHAIKH
B.Sc, B.Ed, LLB(Spl)
XLII A.C.M.M
Bengaluru City.
Dated this the 28th day of January, 2019
CC.No.6095/2018
JUDGMENT U/S 355 OF Cr.P.C.
1. Sl.No. of the case : C.C.No.6095/2018
2. The date of commence of Evidence : 06.08.2018
3. The date of Institution : 03.12.2016
4. Name of the Complainant :M/s Shreyas Hind Chits
India Pvt Ltd
Infinity Pride,
No.91, 3rd floor,
5th cross,
Malleshwaram,
Bengaluru-560 003.
Rep. by its Director
Smt. B.G Pushpalatha
W/o Sri. M. Srinivas
Aged about 57 years.
5. Name of the Accused : Sri. B.M Sathisha
S/o Sri. B.L Marigowda,
aged about 35 years,
R/at No.22, E & F block,
1st main road, LIG Houses,
2 CC.No. 6095/2018
Ramakrishna Nagar,
Mysore,
Karnataka- 570023.
6. The offence complained : 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 : 28.01.2019
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 r/w 142 of N.I. Act.
2. The gist of the complainant's case is that :
The Complainant is a registered Chit Fund Company. The accused has subscribed chit conducted by the complainant for Rs.5,00,000/- bearing No.5LCI with ticket No.14 which was launched on 25.08.2013.
The accused became successful bidder and received the chit amount of Rs.3,50,000/- from the complainant by 3 CC.No. 6095/2018 executing the chit documents in favour of the complainant. After obtaining the chit prized money the accused has failed to pay the monthly chit installments and the accused ha become over due. Hence, the complainant has demanded the accused to pay six monthly chit installments amounting to Rs.60,000/- , the accused has issued a cheque bearing No.228193 dated:04.07.2017 for Rs.60,000/- drawn on ICICI Bank, Bidadi branch, Bidadi Industrial area, Ramanagar taluk, Bengaluru towards the liability and repayment of the chit installment amount. The said cheque was presented for encashment through its banker State Bank of India, Jayanagar 3rd block, Bengaluru, but the said cheque was dishonour for the reasons 'Account closed'. To that effect received the banker memo dated 16.08.2017. There after on 14.09.2017 complainant got issued a legal notice to the accused through RPAD calling upon the accused to pay the cheque amount within 15 days from the date of receipt of the said notice. The accused has not received 4 CC.No. 6095/2018 the RPAD envelop and the same is returned with postal endorsement ' no such person returned to sender' on 25.09.2017. Inspite of receipt of notice the accused has not paid the cheque amount to the complainant nor issued any reply. The complainant filed the complaint against the accused for having committed an offence punishable u/s 138 of N.I. Act on 04.11.2017.
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 30.06.2018 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 Director of the complainant Company Smt. B.G Pushpalatha examined as PW1 and got marked Ex.P1 to 17. Then the statement u/s 313 Cr.P.C came to be recorded on 19.09.2018, 5 CC.No. 6095/2018 wherein the incriminating evidence appearing against the accused was read over and explained. Accused denied the incriminating evidence readover to them. Accused examined himself as DW1 and got marked Ex.D1 to 3 on his behalf.
5. The learned Counsel for complainant argued that accused has subscribed chit conducted by the complainant for Rs.5,00,000/- bearing No.5LCI with ticket No.14 which was launched on 25.08.2013. The accused became successful bidder and received the chit amount of Rs.3,50,000/- from the complainant by executing the chit documents in favour of the complainant. After obtaining the chit prized money the accused has failed to pay the monthly chit installments and the accused had become over due. Hence, the complainant has demanded the accused to pay six monthly chit installments amounting to Rs.60,000/-, the accused has issued a cheque bearing No.228193 dated:04.07.2017 for Rs.60,000/- drawn on ICICI Bank, 6 CC.No. 6095/2018 Bidadi branch, Bidadi Industrial area, Ramanagar taluk, Bengaluru towards the liability and repayment of the chit installment amount. The said cheque was presented for encashment through its banker State Bank of India, Jayanagar 3rd block, Bengaluru, but the said cheque was dishonour for the reasons 'Account closed'. To that effect received the banker memo dated 16.08.2017. There after on 14.09.2017 complainant got issued a legal notice to the accused through RPAD calling upon the accused to pay the cheque amount within 15 days from the date of receipt of the said notice. The accused has not received the RPAD envelop and the same is returned with postal endorsement ' no such person returned to sender' on 25.09.2017. Further it is contended that the presumption was in favour of the complainant which was not rebutted by the accused. It is contended by the complainant that the ingredients of Sec.138 and 142 are duly complied with and the accused is entitled for conviction.
7 CC.No. 6095/2018
6. The learned Counsel for accused submitted that he was the subscriber of the chit in the year 2013 and at the time of obtaining the bid complainant company have taken 5 signed blank cheques from the accused for the security and a filed a false complaint against the accused by misutilizing the same. Hence prayed to acquit the accused.
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:
1. Whether the complainant proves that the accused towards discharge of legal recoverable debt issued cheque bearing No.228193 dated 04.07.2017, for Rs.60,000/- drawn on ICICI Bank, Bidadi branch, Bidadi Industrial area, Ramanagar taluk, Bengaluru in favour of complainant, on presentation for encashment it was returned as 'Account closed' and inspite of receipt of legal 8 CC.No. 6095/2018 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:
REASONS
10. Point No.1:- In order to prove the case, the Director of the complainant company Smt. B.G Pushpalatha filed affidavit in lieu of examination-in-chief and has reiterated the allegations made in the complaint on oath. She also got marked documents Ex.P1 to Ex.P15. On perusal of document Ex.P1 it is found that it is the incorporation certificate and there is no document produced by the accused to prove that the said complainant company is not incorporated under companies Act. In view of the same it is found that the 9 CC.No. 6095/2018 complainant company incorporation certificate remains unchallenged. PW1 has produced Ex.P2 the order of the chit registrar granting permission to run the chit business which is not challenging in the cross examination of PW1 nor in the evidence of the accused hence, there is no dispute that the complainant firm is registered as per Ex.P1 and it has been permitted to run the chit business from the registrar of chits as per Ex.P2. Further in the evidence the complainant PW1 has produced Ex.P3 to show that she is duly authorized to represent and contest the case on behalf of the company which is also not challenged in the cross examination of PW1 nor in the evidence of the accused. It is important to note that no documents has been produced by the accused in his evidence to disprove the authority of PW1 as per Ex.P3 to contest the case on behalf of the company. In the absence of cogent evidence and documents the authority of PW1 to contest the case on behalf of the complainant also remains undisputed and 10 CC.No. 6095/2018 unchallenged.
11. In the evidence PW1 the complainant has produced Ex.P8 the chit agreement regarding the chit No.SHPL- 5LBU ticket No.18 and also produced Ex.P9 the receipts which had been executed by the accused in the said chit with signature Ex.P9(a) of the accused along with Ex.P10 On Demand promissory note in the said chit with the signature of the accused Ex.P10(a) in the said document. It is important to note that the said documents Ex.P8 to 9 are not at all related to the case since the contention of the complainant in the evidence as well as in the complaint is that accused is member of the chit in Chit Group Bearing No.5LC1 with ticket No.14 and for the discharge of legal liability in the said chit he had issued the disputed cheque Ex.P4. It is pertinent to note that in the cross examination of PW1 he denied that he was the member of the chit in SHPL-BLBU ticket No.18 chit but admitted his signatures which were marked on confrontation on Ex.P9(a) and Ex.P10(a) On Demand 11 CC.No. 6095/2018 Promissory note. This admission of his signature clearly shows that accused was also the subscriber of the chit in the complainant company in the chit group SHPL-BLBU ticket No.18. At this juncture it is pertinent to note that this document cannot be relied because they are not at all related to the disputed cheque which has been issued in discharge of legal liability in the chit group 5LCI ticket No.14.
12. In the instant case complainant/PW1 has also produced Ex.P12 the agreement that has been executed by the accused for the group SHPL-5LCI with ticket No.14 and also produced On Demand Promissory note Ex.P13 with signature Ex.P13(a) and 13(b) of the accused and also produced Ex.P14 the receipts executed by the accused regarding obtaining of the chit amount and Ex.P15 the auction minute. It is very pertinent to note that in the cross examination of DW1 he admitted his signature on the On Demand Promissory note Ex.P13 and the said signatures were marked Ex.P13(a) and 12 CC.No. 6095/2018 13(b) and also admitted that after the bid of the chit he has received Rs.3,42,000 to Rs.3,50,000/- from the complainant company and has repaid the said amount in 3 to 4 months installment and further had paid the entire chit amount to the complainant company. The evidence of DW1 regarding the said aspect is as follows:
" £Á£ÀÄ 3-4 wAUÀ¼ÀÄ aÃnAiÀÄ PÀAw£À ºÀtªÀ£ÀÄß ¥ÁªÀw¹zÉÝãÉ, £ÀAvÀgÀ ¸ÀA¥ÀÇtð ºÀtªÀ£ÀÄß MAzÉà ¨Áj PÀnÖzÀ PÁgÀt aÃnAiÀÄ PÀAw£À CªÀ¢ü ªÀÄÄPÁÛAiÀĪÁVgÀÄvÀÛzÉ. £Á£ÀÄ aÃn ©qï ªÀiÁrzÀ £ÀAvÀgÀ gÀÆ.3,42,000 jAzÀ gÀÆ.3,50,000 ªÀgÉUÉ ºÀtªÀ£ÀÄß ¦gÁå¢ ¸ÀA¸ÉܬÄAzÀ ¥ÀqÉzÀÄPÉÆArzÉÝ."
From this admission of DW1 the accused it is crystal clear that there is no dispute that accused was the subscriber of the chit as per Ex.P12 and endorsed his signature Ex.P13(a) and 13(b) on the On Demand Promissory note Ex.P13 and obtained an amount of Rs.3,50,000/- prize amount as mentioned in the chit auction minute Ex.P15. In view of the same the 13 CC.No. 6095/2018 complainant/PW1 has proved that accused was the subscriber of the chit group SHPL-5lCI Chit No.14 and has obtained an prize amount of Rs.3,50,000/- by the complainant firm by executing chit agreement Ex.P13, chit auction minute Ex.P15 and On Demand Promissory note Ex.P13 with signatures Ex.P13(a) and 13(b). In the chief examination of DW1 it is deposed by the accused that he has paid the entire chit amount to the complainant company and he is not in due for the payment of any legally recordable debt as mentioned in the disputed cheque Ex.P4. It is also the evidence of DW1 in his examination in chief that the cheques which he had issued for the purpose of security has been misused by filing a false complaint against the accused. It is pertinent to note that in the cross examination the contention of the accused is that he had paid 3 to 4 installments to the complainant company and later he has paid the entire amount at one stretch to the company. In the cross examination of DW1 it is 14 CC.No. 6095/2018 admitted that he has produced the pass book of the complainant company to show that the entries in the said book endorsed by the complainant company for having received the installment amount . It is also admitted by the accused/DW1 that he has not produced any receipts of the complainant company to show that he had paid the entire chit amount to the complainant company. The evidence of DW1 in cross examination is as follows:
" £Á£ÀÄ ¦gÁå¢ ¸ÀA¸ÉÜUÉ ¸ÀA¥ÀÇtð ºÀtªÀ£ÀÄß AiÀiÁªÀ ¢£ÁAPÀzÀAzÀÄ JµÀÄÖ ºÀt ¥ÁªÀw¹zÉÝÃ£É JAzÀÄ ºÉüÀ®Ä FUÀ £À£ÀUÉ £É£À¦zÉ. ¦gÁå¢ ¸ÀA¸ÉÜUÉ £Á£ÀÄ ºÀt ¥ÁªÀw¹zÀ ¸ÀªÀÄAiÀÄzÀ°è ¦gÁå¢ ¸ÀA¸ÉÜAiÀĪÀgÄÀ ¤ÃrzÀÝ gÀ¹Ã¢UÀ¼À£ÀÄß £ÁåAiÀiÁ®AiÀÄPÉÌ ºÁdj¹®è JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ."
From this evidence it is crystal clear that accused has not produced a single document to show that he has repaid the chit amount to the complainant company. In the absence of the relevant receipts regarding payment 15 CC.No. 6095/2018 made by the accused to the complainant company the contention of the accused that he has repaid the entire loan amount cannot be taken into consideration. It is also important to note that in the cross examination of DW1 he deposed that after payment of the entire amount the complainant company has closed the file as settled. In order to disprove the said fact in the cross examination a suggession was made by the complainant counsel to DW1 that whether he has obtained NOC for having cleared the entire chit amount from the complainant and for the said suggession accused deposed that he could not obtained the same since the complainant firm was closed when he approached for NOC. It is also important to note that further in the cross examination DW1 admitted that he has not taken any legal action against the complainant company for having not issued the NOC. This evidence is crystal clear to arrived the conclusion that accused ought to have taken legal action against the complainant by filing a complaint 16 CC.No. 6095/2018 or by issuing a notice for the issuance of NOC and return of the cheques which he had handed at the time obtaining the prize money as contended. The records discloses that accused has not produced a single document regarding the entire repayment of the chit amount nor any document has been placed before the court that inspite the accused making the entire payment the complainant company has not issued him the NOC. In view of the above discussions the contention of the accused that he has repaid the entire loan amount stands disproved and cannot be considered. In the cross examination of PW1 the counsel for the accused had confronted a notice dated:21.10.2017 issued by the complainant company to accused which on admission as marked as Ex.D1. Further in the chief examination of accused/ DW1 he has produced a reply notice on 27.10.2017 to the notice dated 21.10.2017 issued by the complainant company marked as Ex.D2. It is vehemently argued by the 17 CC.No. 6095/2018 accused counsel that the said notice was issued by the complainant before filing the complaint and the notice though was replied as per Ex.D2 has never been discussed by the complainant in the complaint and legal notice. It is pertinent to note that the notice Ex.D1 was issued against the accused for the dishonour of the cheque number 271552 dated 08.09.2017 for Rs.60,000/- but the said disputed cheque in this case is also for Rs.60,000/- with cheque number 228193 . Further in the complaint Ex.P11 and the notice Ex.P7 the cheque Number is 228193 and the amount is Rs.60,000/- which corroborates with the disputed cheque Ex.P4. In view of the same the present case filed against the accused is not having any technical defects regarding the amount and the cheque number in the complaint and the notice. It is pertinent to note that though PW1/complainant had admitted the issuing of Ex.D1 notice to the accused but the cheque number mentioned in the Ex.D1 differed with that of the disputed 18 CC.No. 6095/2018 cheque Ex.P4. No technical defects in filing the complaint can be attached to this case for complainant PW1 not acting and taking legal action as per the Ex.D1 notice. The present complaint filed by the complainant for the dishonour of cheque Ex.P4 is averred in the complaint and the notice and the same is found to be incompliance with the provisions of Section 138 of N.I Act. In view of the same the contention of the accused counsel that the complaint has to be dismissed for not initiating proceedings against the accused by the complainant as per the notice Ex.D1 and reply notice Ex.D2 cannot be considered. It is also pertinent to note that in the chief examination DW1 the accused admits that the disputed cheque belongs to his account with his signature was in the possession of the complainant. The cheque/Ex.P4 and the signature Ex.P4(a) is never denied by the accused at any point of time of cross examination of PW1 and in his chief evidence. It is vehemently argued by the complainant counsel that in discharge of 19 CC.No. 6095/2018 legally enforceable debt and liability accused had issued cheque Ex.P4 to the complainant company. Admission of the cheque and the signature issued to the complainant raised a presumption in favour of the complainant which has to be rebutted by the accused by producing cogent evidence and relevant document.
13. At this juncture I would also like to discuss the dictum of law laid down in 2010 (11) SCC 441 (Rangappa v/s Sri. Mohan) The Hon'ble Supreme Court has laid down the dictum of law and has held in para-16 that :
" Once the cheque relates to the account of the accused that he accepts and admits the signature on the said cheque, then initial presumption as contemplated under section 139 of the Negotiable Instrument Act has to be raised by the court in favour of the complainant. The presumption referred to in section 139 of the N.I 20 CC.No. 6095/2018 Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption ....."
In the light of the principle laid down in the above case, it is crystal clear that when accused admits his signature on the disputed cheque mandatory presumption u/s 139 of N.I Act arise in favour of the complainant which has to be rebutted by the accused. In the instant case accused has failed to rebut the presumption which has been raised u/s 139 of N.I Act in favour of the complainant.
14. I would like to refer on the decision of the 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 21 CC.No. 6095/2018 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 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.
15. 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 cheque/Ex.P4 was issued by the accused towards discharge of an existing liability and legally enforceable debt.
16. Further I would like to discuss the dictum of law laid down by Hon'ble High Court when the signature of the accused is not denied and the same is proved by the complainant.
22 CC.No. 6095/2018Delhi District Court (Sh.Prem Chand v/s Unknown on 19 October, 2016 Para-21 it is held that :
"Admission of signatures is sufficient to prove that the cheque in question must have been issued in discharge of some legal liability/debt. In Jaipal Singh Rana v. Swaraj Pal 149 (2008) DLT 682, the Hon'ble Delhi High Court has held that there is no alteration in a cheque if the amount and the date are filled by somebody else apart from the signatory of the cheque. It was further held that there is no law that requires the filling up of entire cheque by drawer himself".
17. This ruling is aptly applicable to the present facts and circumstances of the case since in the cross examination of PW1 it was contended by the accused counsel that other than the signature on the said cheque remaining portion has been written by using a different ink which was denied by PW1. The dictum of law laid down in the above ruling it is crystal clear that there is no law that requires the filling up of entire cheque by drawer himself. In view of the same the contention of the accused that the contents of the cheque Ex.P4 other than the signature of the accused 23 CC.No. 6095/2018 Ex.P4(a) is written by using different ink cannot be taken into consideration.
18. The above discussed rulings are applicable to the present fact of the case when the accused signature is proved on the cheque by the complainant then by virtue of section 118 and 139 of Negotiable Instruments Act and in view of the principle laid down by the Hon'ble Apex Court of India and various Hon'ble High Courts in catena of decisions the complainant discharged his initial burden in view of the same the presumption is in favour of the holder of the cheque i.e., complainant. It is pertinent to note that though the burden was on accused to lead the rebuttal evidence to disprove the fact that he has not issued Ex.P4/cheque to the complainant for discharge of debt or liability but accused has not rebutted the same and failed to prove his defence.
19. It is equally important to note that as per the evidence of PW1 prior to filing of the complaint the 24 CC.No. 6095/2018 accused got issued legal notice as per Ex.P.6. The postal receipt is produced at Ex.P6(a) and the postal cover is produced which is marked as Ex.P7(a) and the notice in the said cover is marked as Ex.P7. In the cross examination of PW1 it is deposed by DW1 that 16 years back he was residing in the address mentioned in the complaint Ex.P11 and notice Ex.P6 and 7 and further in the evidence it is deposed by DW1 in cross examination that at the time of obtaining the chit amount he had issued his election Identity card and Adhaar card and the said document were marked on confrontation since accused admitted the same as Ex.P16 & 17. The relevant portion of cross examination of DW1 is as follows:
" £Á£ÀÄ 16 ªÀµÀðzÀ »AzÉ £ÀA.22, E ªÀÄvÀÄÛ J¥sï ¨ÁèPï, 1£Éà ªÀÄÄRå gÀ¸ÉÛ, JªÀiïLf, gÁªÀÄPÀʵÀÚ £ÀUÀgÀ, ªÉÄʸÀÆgÀ «¼Á¸ÀzÀ°è ªÁ¸ÀªÁVzÉÝ. £Á£ÀÄ ¦gÁå¢ ¸ÀA¸ÉÜAiÀÄ°è aÃnUÉ ¸ÀzÀ¸Àå£ÁUÀĪÀ ¸ÀªÀÄAiÀÄzÀ°è £À£Àß ZÀÄ£ÁªÀuÁ UÀÄgÀÄw£À aÃn ªÀÄvÀÄÛ DzsÁgï PÁqïð£ÀÄß PÉÆnÖzÉÝ. ¸ÁQëUÉ DvÀ£À ZÀÄ£ÁªÀuÁ UÀÄgÀÄw£À aÃn ªÀÄvÀÄÛ DzsÁgï PÁqïð£À eÉgÁPïì ¥ÀæwUÀ¼À£ÀÄß 25 CC.No. 6095/2018 vÉÆÃj¸À¯ÁV ¸ÁQëAiÀÄÄ CªÀÅUÀ¼À£ÀÄß M¦àPÆ É ArzÀÄÝ ¸ÀzÀj zÁR¯ÉUÀ¼À°ègÀĪÀ ¤±Á£ÉAiÀiÁV UÀÄgÀÄw¸À®Ä ¦gÁå¢ ¥ÀgÀ ªÀQîgÀÄ PÉýPÉÆArzÀÄÝ CªÀÅUÀ¼À£ÀÄß PÀæªÄÀ ªÁV ¤¦-16 ªÀÄvÀÄÛ ¤¦-17 JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. ¦gÁå¢ ¸ÀA¸ÉÜAiÀÄ°è aÃnUÉ ¸ÀzÀ¸Àå£ÁUÀĪÀ ¸ÀªÀÄAiÀÄzÀ°è ªÀÄvÀÄÛ aÃn ¥ÀqÉzÀ £ÀAvÀgÀ £À£Àß «¼Á¸À §zÀ¯Á¬Ä¸ÀĪÀ §UÉÎ ¦gÁå¢ ¸ÀA¸ÉÜUÉ AiÀiÁªÀÅzÉà °TvÀ ªÀiÁ»w ¤Ãr®è. ¸ÁQëAiÀÄÄ ªÀÄÄAzÀĪÀjzÀÄ ¦gÁå¢ ¸ÀA¸ÉÜAiÀÄ KeÉAmïUÉ D §UÉÎ ªÀiÁ»w ¤ÃrzÉÝ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ."
On perusal of the document Ex.P16 & 17 it is found that the said document are marked on confrontation to the accused when he admitted the same which discloses that Ex.P16 is the Aadhar card and Ex.P17 is the election identity card. It is pertinent to note that the address shown in both Ex.P16 & 17 are same address that has been mentioned in the complaint Ex.P11 and the notices Ex.P6 & Ex.P7 and cover Ex.P7(a). From this documentary evidence it is crystal clear that the notice has been served to the accused on the proper address which he had provided to the complainant company at the time of subscription to the member of the chit . It is also 26 CC.No. 6095/2018 admitted in the evidence of DW1 in cross examination that after changing his address he has not intimated the same to the complainant company. From this it is crystal clear that bonafindly as per the documents Ex.P16 & 17 that has been provided by the accused to the complainant company notice has been issued to the said proper address of the accused. Now the contention of the accused that the notice has not been duly served cannot be taken into consideration in view of the dictum of law laid down by Hon'ble Supreme Court in the following reported rulings:
2007 AIR SCW 3578 (C.C.Avavi Haji v/s Palapetty Muhammed & Anor).
On perusal the said ruling it is found that the Hon'ble Supreme Court held at para- 8 that :
Sec.138 of the act does not require that the notice should be given only by 'post', yet in a case where the sender as a dispatched the notice by post with correct address written on it, the principle incorporated in section 27 of the General Clause Act 1897 (for short GC Act) could profitably be imported 27 CC.No. 6095/2018 in such a case. It was held that in this situation service of notice is deemed to have been affected on the sendee unless he proves that it was not really served and that he was not responsible for such non service. Further at para -10 it is held that : The requirement of clause (b) of the provisions of Sec.138 of the Act stands complied with and cause of action to file a complaint arises on the expiry of the period prescribed in clause (c) of the said proviso to Sec.138 for payment by the drawer of the cheque. Nevertheless it would be without prejudice to the right of the drawer to show that he had now knowledge that the notice are brought to his address.
This ruling is aptly applicable to the present case on the hand since the notice as per Ex.P6 & 7 was duly served as per postal cover Ex.P7(a) to the proper address of the accused as mentioned in Ex.16 & 17. In view of view of the same the contention of the accused that the notice was not duly served to his proper address cannot be taken into consideration.
20. Non-initiating the legal action for alleged misutilization, non-intimating to his banker and non- issuance of reply are the strongest circumstances to draw 28 CC.No. 6095/2018 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. The word '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 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 29 CC.No. 6095/2018 presumption created by the provisions cannot be said to be rebutted. On appreciation of evidence on record the explanation of accused is not supported by proof. Hence, it cannot be said that the accused has rebutted the presumption accordingly, I have no hesitation to arrive at the conclusion that accused has utterly failed to rebut the presumption.
21. On appreciation of entire evidence, this Court is of the opinion that the accused has miserably failed 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 cheque/Ex.P4 for a sum of Rs.60,000/- towards discharge of legally enforceable debt and on presentation of the cheque, it was dishonored for the reasons 'Account closed'. Further it is proved by the complainant that after service of legal notice, the accused has not replied the notice and has not paid the cheque amount. Hence, in the considered view of this Court, the complainant has complied the provisions 30 CC.No. 6095/2018 of Sec.142 and Sec. 138 of N.I. Act. Hence, I answer the above point No.1 in the affirmative.
22. Point No.2:- From the material from record it appears that accused is 38 years & doing private business. Considering the age and avocation of the accused, also quantum of accused if the accused is sent to jail it will cause hardship to the accused and the family members. Having regard to the said facts and circumstance, prevailing rate of interest in the nationalized bank and litigation expenses 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 255(2) of Cr.P.C. the accused is convicted and sentenced to pay fine of Rs.80,000/-, in default shall undergo simple imprisonment for two months.31 CC.No. 6095/2018
Out of fine amount of Rs.80,000/- a sum of Rs.78,000/- 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 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 28th day of January, 2019) (ABDUL RAHIM HUSSAIN SHAIKH) XLII Addl. Chief Metropolitan Magistrate, Bangaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT:-
PW1 : Smt. B.G Pushpalatha LIST OF WITNESSES EXAMINED ON BEHALF OF THE DEFENCE:-
DW1 : Sathish B.M 32 CC.No. 6095/2018 LIST OF DOCUMENTS MARKED ON BEHALF OF THE COMPLAINANT:-
Ex.P1 : C/c of Incorporation certificate Ex.P2 : Chit commencement licence Ex.P3 : Authorization letter Ex.P4 : Cheque Ex.P4(a) : Signature of the accused Ex.P5 : Bank memo Ex.P6 : Office copy of the legal notice Ex.P6(a) : Postal receipt Ex.P7 : Returned postal cover Ex.P7(a) : Legal notice found in the returned postal cover Ex.P8 : Chit agreement Ex.P9 : Receipt Ex.P10 : On Demand Promissory note Ex.P11 : Complaint Ex.P12 : Chit agreement Ex.P13 : On Demand Promissory note Ex.P14 : Receipt Ex.P15 : Chit auction minute Ex.P16 : Adhaar card Ex.P17 : Election ID card LIST OF DOCUMENTS MARKED ON BEHALF OF THE DEFENCE:-
Ex.D1 : Notice Ex.D2 : Reply notice Ex.D3 : Postal acknowledgment XLII Addl. Chief Metropolitan Magistrate, Bengaluru.33 CC.No. 6095/2018
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 255(2) of Cr.P.C. the accused is convicted and sentenced to pay fine of Rs.80,000/-, in default shall undergo simple imprisonment for two months.
Out of fine amount of Rs.80,000/- a sum of Rs.78,000/- 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 executed by the accused shall stand cancelled.
Supply free copy of the judgment to the accused.
XLII A.C.M.M, Bangaluru.34 CC.No. 6095/2018