Bangalore District Court
Mr. Vinay vs Mr. Deepak .M on 17 July, 2018
IN THE COURT OF THE XII ADDL. CHIEF METROPOLITAN
MAGISTRATE, AT BENGALURU
Dated this the 17th Day of July 2018
Present: Sri. Rajkumar .S.Amminbhavi., B.Com., LLB (Spl)
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
C.C.No. 20173/2017
Complainant: Mr. Vinay
S/o. Kempegowda
Aged about 28 Years
R/at. No.412, 18th Cross
3rd Main, Agrahara Layout
Yelahanka
Bengaluru-560 064.
(By H.N.Kumar. Adv)
- Vs -
Accused: Mr. Deepak .M
S/o. Madava Murthy
Aged about 26 Years
R/at. No.131, 3rd Main, 2nd Cross
Chandramouleshwara Nagar
Hunasemaranahalli
Bengaluru-560 064.
(By. R.Chandra Shekar. Adv)
Offence complained of: U/s. 138 of the Negotiable
Instruments Act
Plea of the accused: Pleaded not guilty
Final Order: Accused is convicted
Date of order: 17.07.2018
******
2 CC No.20173/2017
JUDGMENT
This is a complaint under Sec.200 of Cr.PC against the accused for the offence punishable under Sec.138 of the Negotiable Instruments Act.
2. The facts of the complaint in brief are that, both the complainant and accused are known to each other. On account of well acquainted with the complainant, the accused has approached the complainant and requested for financial assistance of Rs.2,00,000/- in order to meet out his family necessities and personal commitments. Accordingly, considering the request of the accused and on good faith and believed the words of the accused and in order to help, the complainant has advanced hand loan an amount of Rs.2,00,000/- to the accused on 06.08.2016 by way of cash and at that time, the accused had agreed to repay the said amount within a period of 6 months. After lapse of stipulated period on repeated request and demand made by the complainant to the accused for repayment of the said amount and at that time the accused for discharge the said amount had issued cheque bearing No.433083, dated: 29.05.2017 drawn on Karnataka Bank Limited, Hunasamarnahalli Branch, Bengaluru for a sum of Rs.2,00,000/- in favour of the complainant and assured that, the said cheque would be honoured on its presentation and as per the assurance made by the accused, the complainant has presented the said cheque through his banker i.e., Indian Bank, Thirumanahalli 3 CC No.20173/2017 Branch, Bengaluru, but it was dishonoured with an endorsement as "Funds Insufficient" and thereafter, the complainant has informed the said fact to the accused, but the accused did not responded the same. Hence, the complainant had got issued the legal notice on 15.06.2017 through his counsel by RPAD, calling upon him to repay the said borrowed loan amount within 15 days from the date of receipt of this legal notice and it was duly served upon him. Despite service of the legal notice, the accused neither repaid the borrowed the loan amount nor reply the legal notice issued by the complainant. Hence, the complainant had constrained to file a complaint against the accused for the offence punishable under Section 138 of N.I. Act., which is well within time and based on the records available on record cognizance has been taken and registered it PCR.
3. After recording of the sworn statement of the complainant and complaint is registered in criminal case registered and after issuance of summons to the accused, pursuant to the summons the accused had appeared before this Court through his counsel and enlarged on bail. The substance of accusation was recorded and read over to the accused in his vernacular. He pleaded not guilty. Hence, claims for trail.
4. In order to prove the case of the complainant, the complainant got himself examined as PW.1 & got 4 4 CC No.20173/2017 documents marked as Ex.P.1 to Ex.P.4. When the case was posted for cross of PW-1. Insipite of giving sufficient opportunity, neither the accused nor his counsel, they have failed to cross-examine the PW-1. Hence, cross of PW-1 is taken as no cross. Thereafter, the accused had failed to appear before this Hon'ble Court and NBW has been issued against him and subsequently, the accused has appeared and the Statement of accused under Section 313 of Cr.P.C., was recorded and he denied the incriminating statement against him and when the matter was posted for defence evidence and subsequently, the accused has filed an application under Section 311 of Cr.P.C., seeking for re-calling the PW-1 and that application was allowed and when the matter was posted for cross of PW-1 or settled as per the request of the accused and subsequently, inspite of giving sufficient opportunity, neither the accused nor his counsel, they have failed to cross- examine the PW-1 and they have failed to settle the dispute and they have failed to appear before this Court and accordingly, NBW has been issued against him and same was & is un-executed and accordingly, his bail bond stands cancelled and the cash surety amount has been forfeited to the state. As per the new amendment Provision under Section 145(2) of N.I.Act. Inspite of giving sufficient opportunity to the accused, he had failed to file an application under Section 145(2) N.I.Act for adducing defence evidence. Hence, defence evidence is taken as no evidence. Since the present complaint in summary trail in nature. I am relying the citation reported in AIR 2014 SC 2528 Indian Bank 5 CC No.20173/2017 Association & others V/s. Union of India and others- Negotiable instructions Act (26 of 1881), Section 138, 143, 145- dishonour of cheque-summary trail-directions given to trail Court to follow procedures for speedy and expeditious disposal of cases falling under Section 138 of N.I.Act. Thereby appearance of the accused is dispensed with and case was posted for arguments.
5. Heard arguments.
6. The following points arise for my determination;
1. Whether the complainant proves that the accused had issued cheque bearing No.433083, dated:29.05.2017 for Rs.2,00,000/- drawn on Karnataka Bank Limited, Hunasamaranahalli Branch, Bengaluru, for discharge of the amount and when the said cheque presented for encashment, it was dishonoured with an endorsement "Funds Insufficient" and after issuance of the legal notice he fails to repay the said amount and Thereby, the accused have committed offence punishable U/s. 138 N.I.Act?
2. What order ?
7. My answer to the above points are;
Point No.1 : In the Affirmative
Point No.2 : As per final order for the
following;
6 CC No.20173/2017
REASONS
8. POINT NO.1: On perusal of the evidence of PW-1 he has reiterated as per the averments made in the complaint and he has got marked 4 documents namely, cheque which is marked as Ex.P1, the signature of the accused therein which is marked as Ex.P1(a), the bank endorsement which is marked as Ex.P2, the office of the legal notice which is marked as Ex.P3, Postal track consignment which is marked as Ex.P4.
9. When the case was posted for cross of PW-1. Insipite of giving sufficient opportunity, neither the accused nor his counsel, they have failed to cross-examine the PW-1. Hence, cross of PW-1 is taken as no cross. Thereafter, the accused had failed to appear before this Hon'ble Court and NBW has been issued against him and subsequently, the accused has appeared and the Statement of accused under Section 313 of Cr.P.C., was recorded and he denied the incriminating statement against him and when the matter was posted for defence evidence and subsequently, the accused has filed an application under Section 311 of Cr.P.C., seeking for re- calling the PW-1 and that application was allowed and when the matter was posted for cross of PW-1 or settled as per the request of the accused and subsequently, inspite of giving sufficient opportunity, neither the accused nor his counsel, they have failed to cross-examine the PW-1 and they have failed to settle the dispute and they have failed to appear 7 CC No.20173/2017 before this Court and accordingly, NBW has been issued against him and same was & is un-executed and accordingly, his bail bond stands cancelled and the cash surety amount has been forfeited to the state. As per the new amendment Provision under Section 145(2) of N.I.Act. Inspite of giving sufficient opportunity to the accused, he had failed to file an application under Section 145(2) N.I.Act for adducing defence evidence. Hence, defence evidence is taken as no evidence and after heard the arguments the matter was posted for judgment.
10. On perusal of the averments made in the complaint and also documents produced by the complainant is that, it is an admitted fact that, even after issuance of the legal notice by the complainant to the accused prior to filing of the said complaint, the accused has not gave any reply notice. Therefore, prior to filing of the said complaint the complainant had complied all the necessary ingredients under Section 138 of N.I.Act. Though the accused has appeared before this Court through his counsel and enlarged on bail, he pleaded not guilty and claim for trail and to substantiate the said defence he has not cross-examined the PW-1 and inspite of giving sufficient opportunity he has failed to adduce his defence evidence and he has not produced any iota of documentary evidence, except his oral testimony. Since the evidence of PW-1 is unchallenged one. On perusal of the Ex.P1 there is no any ambiguity. Since the complainant has proved his case by adducing cogent and corroborative 8 CC No.20173/2017 evidence, the accused had failed to cross examine the PW-1 and failed to defend his case by adducing his defence evidence.
11. If really, he was not at all borrowed the loan in question from the complainant and he has not at all issued the Ex.P1 for discharge of the loan in question to the complainant, he ought to have gave stop payment instruction to his banker, he ought to have gave reply notice to the legal notice issued by the complaint, he ought to have adduce his defence evidence, he ought to have cross-examine the PW-1. Therefore, non-performing the aforesaid legal proceedings that itself, it is very much fatal to the alleged defence set-up by the accused during the course of recording of his accusation. There is no dispute that, Ex.P1 cheque is belonging to his own bank account cheque and signature found on the Ex.P1(a) is his own signature. It can be presumed that, the accused has issued the Ex.P1 to the complainant knowing fully well without having sufficient funds in his bank account with an intention to defeat the claim of the complainant.
12. It can be presumed that, no any ordinary prudent man will issue signed blank cheque to any other persons without having monetary transaction between themselves. As per the Section 73 of the Indian Evidence Act., this Court is having ample power with respect to compare the admitted signature and disputed signature. Therefore, on perusal of the Ex.P1 9 CC No.20173/2017 therein signature of the accused Ex.P1(a) the accused had put his signature at the time of filing the vaklath and enlarged on bail and the accused had put his signature at the time of recording of his accusation are one and the same. Hence, the probability of the preponderance is higher on the side of the complainant, rather than the accused.
13. Ordinarily offence under Section 138 of N.I.Act "mensrea" is not essential, under Section 138 of N.I.Act , is bring into operation rule of strict liability, whereas, "mensrea" is essential ingredients in criminal offences. Therefore, The complainant has proved his case against the accused, since offence under Section 138 of N.I.Act element of Mensrea has been excluded in general public interest to curb the instances of dishonouring of cheques and to lend the credibility to the commercial transaction. Therefore, in this case also the accused knowing fully he was borrowed the loan in question from the complainant and for discharge the loan in question he has issued the Ex.P1 to the complainant. Since the present complaint is summary trial and quasi-criminal in nature, it is like recovery proceedings and punishment is fine or in default of it simple imprisonment. In this context I am relying the citation reported in AIR 2009 NOC 404 (Kerala) in Babu V/s. K.J. Joseph. It is argued that, it is evident from Section 356(6) of Cr.P.C., that, in case of judgment is one of acquittal or fine only. It is not necessary for personal presence of the accused to receive the copy of the judgment.
10 CC No.20173/2017Hence, in this case also in the absence of the accused, the Court will pass the judgment.
14. Hence, in the light of the above observation, the complainant has successfully proved that, the accused has committed offence punishable under Section 138 of N.I. Act with these reasons, I am the opinion that, the complainant successfully established before the Court, the accused has issued Ex.P1 to the complainant for the legally recoverably debt of Rs.2,00,000/- and the accused is not liable to pay any fine amount to the state, since the cash surety amount has been deposited by the accused at the time of enlarged on bail and inspite of issuance of NBW he has failed to appear before this Court and accordingly, cash surety amount has been already forfeited to the state. Therefore, I answer the point No.1 in the affirmative.
15. Point No.2 :- In view of my findings on Point No.1 in the affirmative, I proceed to pas the following...
ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
The accused shall pay a fine of
Rs.2,00,000/-. In default of payment of said
fine amount, the accused shall undergo simple imprisonment for Two Months.
11 CC No.20173/2017Further, ordered that, entire fine amount of Rs.2,00,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., The bail bond and surety bond of the accused stands cancelled.
Free copy issued to the accused.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified, corrected and then pronounced by me in the open Court on this the 17th day of July 2018).
(Rajkumar.S.Amminbhavi) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the complainant:
PW.1 Vinay List of documents exhibited on behalf of the complainant:
Ex.P.1 Cheque Ex.P.1(a) Signature of the accused Ex.P.2 Bank endorsement Ex.P.3 Office copy of the legal Notice Ex.P.4 Postal track consignment
List of witnesses examined on behalf of the accused :
NIL List of documents exhibited on behalf of the accused :
NIL XII Addl. Chief Metropolitan Magistrate, Bengaluru City.12 CC No.20173/2017
17.07.2018.
Complainant : HNK Accused : KC Judgment.
(Vide separate judgment pronounced in the open Court) ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
13 CC No.20173/2017The accused shall pay a fine of Rs.2,00,000/-. In default of payment of said
fine amount, the accused shall undergo simple imprisonment for Two Months.
Further, ordered that, entire fine amount of Rs.2,00,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., The bail bond and surety bond of the accused stands cancelled.
Free copy issued to the accused.
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
14 CC No.20173/2017Heard Inference 15 CC No.20173/2017