Bangalore District Court
Special Operations vs Outer Ring Road on 2 November, 2018
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
DATED THIS THE 2nd DAY OF NOVEMBER, 2018
PRESENT
Sri. Shridhar Gopalakrishna Bhat, LL.B
XIV ADDL. C.M.M., BENGALURU
CASE NO C.C. NO.52135/2018
HDFC Bank Ltd.,
Having its Registered Office at HDFC Bank
House, Senapati Bapat Marg, Lower Parel
West, Mumbai - 400 013, inter alia
having its Office of Department for
COMPLAINANT Special Operations, No.7 & 7/1, 2nd Floor,
Essel Chambers, Lal Bagh Road,
Richmond Circle - 560 027
Reptd by its Senior Manager
Mr. Srivathsan Varadhan
Aged about 44 years
S/o Mr. K.S. Varadhan
M/s. Annapoorneshwari Enterprises
A Proprietary Concern, Represented by its
Proprietor - Mr. Umesh Puttaiah
S/o. Mr. Puttaiah, "Tamarind", No.2,
ACCUSED Outer Ring Road, Near Ramamurthy
Nagar Bridge, Banaswadi, Bengaluru -
560 043.
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.52135/2018
JUDGMENT
The complainant Bank has approached this court through its Senior Manager Department for Special Operations-cum- Power of Attorney holder with this complaint under Sec.200 Cr.PC against the accused for the offence punishable under Section 138 of Negotiable Instruments Act. (herein after referred as N.I. Act)
2. The case of the complainant Bank is that, it is the banking company incorporated under the Companies Act, 1956 and carrying on banking business under the Banking Regulation Act, 1949. In the course of the business of the complainant Bank, the accused had approached for Merchant Establishment Overdraft (MEOD) credit facility. Considering the request of the accused, the complainant bank sanctioned MEOD facility to the accused for Rs.50 lakhs under sanctioned letter dtd.09.08.2012. Thereafter at the request of the accused, the existing credit limit for enhanced to Rs.1 crore by sanctioning MEOD of Rs.50 lakhs and Merchant Establishment Term Loan (METL) of Rs.50 lakhs vide sanctioned letter dtd.26.10.2012. The credit facilities were subsequently renewed on 19.09.2013, 24.01.2014 and on 26.08.2014. It is further case of the complainant that during the substance of said credit facilities, on the request of the accused, the credit limit of Rs.1 crore was renewed vide sanctioned letter 3 C.C. No.52135/2018 dtd.27.02.2015 with reduction of MEOD facility to Rs.30 lakhs and MELT of Rs.50 lakhs and additional Dropline Overdraft (DOD) facility of Rs.20 lakhs.
3. It is further case of the complainant bank that the accused had availed and utilized the said credit facilities, but committed default in repayment obligation. When the complainant demanded for repayment of outstanding due amount, the accused had issued five cheques bearing Nos.000804 to 000808 for Rs.3,50,000/- dated 08.09.2017, for Rs.2,50,000/- dtd.28.09.2017, for Rs.3,00,000/- each dtd.10.10.2017, 25.10.2017 and 03.11.2017 respectively in all for Rs.15 lakhs drawn on HDFC Bank, CMH Road, Bengaluru in favour of the complainant bank. It is further case of the complainant that the complainant presented the said cheques for encashment through HDFC Bank, Richmond Road branch, Bengaluru and the said cheques were returned dishonoured for the reason "funds insufficient" as per memo dated 30.11.2017, 01.12.2017, 04.12.2017, 05.12.2017, 06.12.2017. Thereafter the complainant got issued statutory notice dtd.20.12.2017 to the accused by RPAD intimating the dishonour of cheques and calling upon the accused to pay the amount covered under the cheques within stipulated period. Though the said notice was served on the accused on 22.12.2017, the accused did not comply with the lawful demand made in the said notice and thereby intentionally committed the offence punishable 4 C.C. No.52135/2018 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 its favour in accordance with law in the interest of justice and equity.
4. After filing of this complaint, cognizance was taken for the offence punishable U/s.138 of N.I. Act. Sworn statement of the representative 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 representative of the complainant bank is examined as CW.1 and got marked as many as 14 documents as per Ex.P1 to P14 and closed his evidence. The accused has not opted to file application U/s.145(2) of N.I. Act and as such 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 5 C.C. No.52135/2018 others - [W.P. (civil) No.18/2013] the matter was posted for defence evidence. But the accused has not opted to place any evidence on his behalf and even there was no representation for accused and as such the defence evidence was taken as nil and thereby evidence of the parties concluded.
7. Heard the argument of the learned counsel for the complainant. Since the accused remained absent and since there was no representation for accused, the argument on behalf of the accused is taken as nil.
8. On perusal of the entire material available on file and hearing the arguments of the learned counsel for the complainant, the points that would arise for consideration are:-
1) Whether the complainant bank proves that the accused had issued cheques in question in discharge of the legally recoverable debt and committed the offence punishable U/s.138 of N.I. Act?
2) What Order?
9. The above points are answered as under;
Point No.1 : In affirmative,
Point No.2 : As per the final order,
for the following.......
6 C.C. No.52135/2018
REASONS
10. Point No. 1 : As already stated in support of the claim of the complainant bank, the power of attorney holder- cum-Senior Manager Department for Special Operations of the complainant bank being its representative in his 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 representative of the complainant has produced notarized copy of the power of attorney, five cheques dated 08.09.2017, for Rs.2,50,000/- dtd.28.09.2017, for Rs.3,00,000/- each dtd.10.10.2017, 25.10.2017 and 03.11.2017, bank endorsements dtd.30.11.2017, 01.12.2017, 04.12.2017, 05.12.2017 and 07.12.2017, office copy of the legal notice dtd.20.12.2017, postal receipt dtd.21.12.2017 for having sent notice to the accused by RPAD and postal acknowledgement for having service of the notice on the accused as per Ex.P1 to P14 respectively. The contents of Ex.P1 to P14 are analyzed, they clearly support the version of the complainant. Ex.P1 disclose the authority of CW.1 to represent the complainant bank to prosecute the present case. The contents of Ex.P2 to P11 are analyzed, it is clear that the accused had issued cheques dated 7 C.C. No.52135/2018 08.09.2017, for Rs.2,50,000/- dtd.28.09.2017, for Rs.3,00,000/- each dtd.10.10.2017, 25.10.2017 and 03.11.2017 in favour of the complainant bank and the complainant had presented the said cheques for encashment through its banker- HDFC Bank and the said cheques were dishonoured for the reason "funds insufficient" by memos dtd.30.11.2017, 01.12.2017, 04.12.2017, 05.12.2017 and 07.12.2017 as found in Ex.P7 to P11 as put up by the complainant. Further, from the contents of Ex.P12 to P14, it is clear that after dishonour of cheques as found in Ex.P7 to P11, the complainant bank got issued legal notice dtd.20.12.2017 as per Ex.P12 through registered post A.D to the accused on 21.12.2017 intimating the dishonour of the cheques and demanding the payment of the said amount within 15 days from the date of receipt of the said notice. It is clear from Ex.P14 that the said notice was duly served on the accused. The complainant has specifically contended that the said notice was served on the accused on 22.12.2017. The complainant presented the complaint before this court on 03.02.2018 i.e after lapse of 15 days from the date of service of notice and within 30 days thereafter as required under law. Hence on perusal of these aspects, it is clear that the complainant bank had presented the cheques within its validity and got issued statutory notice to the accused within statutory time and filed 8 C.C. No.52135/2018 the complaint within the prescribed period as provided U/s.138 of N.I. Act.
11. Admittedly in spite of issuance of notice, the accused had not complied with the demand made in the said notice. 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 presumption 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 9 C.C. No.52135/2018 complainant has successfully proved the 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. Hence, point No.1 is required to be answered in affirmative and answered accordingly.
12. Point No.2: As discussed in connection with Point No.1, the complainant has proved his case as to commission of the offence punishable under Sec.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 cheque amount or with both. Considering the facts and circumstances of this case, nature, year of the transaction, nature of the instrument involved, amount of the instrument, cost of litigation, Provisions of Sec.117 of N.I. Act etc., this court is of the considered view that it is just and desirable to impose fine of Rs17,78,000/- and out of the said amount a sum of Rs.3,000/- has to be remitted to the State and the remaining amount of Rs.17,75,000/- is to be given to the complainant as compensation as provided U/s.357(1) of Cr.PC and accordingly Point No.2 is answered in affirmative and proceed to pass the following......
10 C.C. No.52135/2018ORDER 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.17,78,000/- 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.17,78,000/-, a sum of Rs.17,75,000/- is ordered to be paid to the complainant as compensation and Rs.3,000/- 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 2nd day of November, 2018) (SHRIDHAR GOPALAKRISHNA BHAT) XIV ADDL. C.M.M., BENGALURU 11 C.C. No.52135/2018 ANNEXURE Witnesses examined for the complainant:
CW.1 : Sri. Srivathsan Varadhan
Witnesses examined for the defence:
NIL
Documents marked for the complainant:
Ex.P1 : Notarized copy of Power of Attorney
Ex.P2 to P6 : Five cheques
Ex.P7 to P11 : Five bank return memos
Ex.P12 : Legal Notice
Ex.P13 : Postal receipt
Ex.P14 : Postal acknowledgement
Documents marked for the defence:
NIL
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU