Bangalore District Court
B.R.Anand vs M/S Donata Constructions on 15 May, 2024
KABC0C0060342021
IN THE COURT OF XXXIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL UNIT, BENGALURU. (ACMM-34)
PRESENT: Smt. PARVEEN A BANKAPUR,B.Com.LLB.
XXXIV ADDL. CHIEF METROPOLITAN
MAGISTRATE,
Dated : This the 15th day of May, 2024
C.C.No.51838/2021
COMPLAINANT : Mr.B.R.Anand
Aged about 57 years,
S/o. Mr. B.H. Ramaiah,
Flat No.12, Kensington Towers,
Kensington Road, Opp. Ulsoor Lake
Swimming Pool,
Bengaluru - 560 052.
(By M/s. Legal Axis - Advocates)
V/s
ACCUSED : 1. M/s. Donata Constructions,
No.35/1, 7th Cross, Vasanthanagar,
Bengaluru - 560 052.
By its Authorised Signatory
Smt. Sonu Wahi
W/o. Mr Sanjeev Wahi
2. Smt. Sonu Wahi
W/o.Mr Sanjeev Wahi
Authorised Signatory
No.35/1, 7th Cross, Vasanthanagar,
Bengaluru - 560 052.
(By Mr.Satyanarayana S. Chalke -
Advocate)
1 Date of Commencement 21.12.2020
of offence
2 Date of report of offence 01.03.2021
3 Presence of accused
3a. Before the Court 28.12.2021
3b. Released on bail 28.12.2021
4 Name of the Complainant Mr. B.R. Anand
5 Date of recording of 03.03.2021
2 C.C.No.51838/2021
evidence
6 Date of closure of evidence 20.01.2024
7 Offences alleged U/s 138 of the Negotiable
Instruments Act.
8 Opinion of Judge Accused are found guilty.
JUDGEMENT
The Private Complaint filed by the Complainant under Section 200 of Cr.P.C against the accused alleging that the Accused committed the offence punishable under Section 138 of Negotiable Instruments Act.
2. The brief facts of the complaint are as follows:
The complainant submits that, the accused had obtained a handloan on various dates amounting to Rs.20 lakhs in total, for their construction business and Accused No.2 repaid Rs.10 lakhs on various dates and thereafter the balance amount due was Rs.10 lakhs.
It is further submitted by the Complainant that Accused No.2 issued a post dated cheque bearing No.078010 dated 21.12.2020 for Rs.10,00,000/- drawn on Axis Bank Ltd., Sadashivnagar, Bengaluru.
It is further submitted by the Complainant that due to medical urgency in his family, he had to get the cheque referred above discounted through an agent M/s. M. Prakash Jain HUF 3 C.C.No.51838/2021 Represented by Mr. Mahavir Jain and Mr. Rajesh Jain, who presented the cheque or encashment, however the cheque was dishonoured with an endorsement as "signature mismatch"
and the same was returned to Complainant, who accordingly presented the same with his banker HDFC Bank ltd., Halasuru branch which as dishonoured with an endorsement "Account blocked" which was intimated to the by his banker on 5.1.2021. This fact was intimated to the accused, but the accused did not pay the cheque amount. Thereafter, the Complainant got issued a legal notice by RPAD on dtd.12.01.2021, calling upon the accused to pay the cheque amount and said notice was served on the accused on 13.01.2021. Despite service of legal notice, the Accused has neither paid the cheque amount nor replied to the notice, Accordingly, the Complainant has filed present complaint against the Accused for the offence punishable u/Sec.138 of N.I. Act.
3. Based on the complaint, the sworn statement affidavit, and documents etc., took cognizance of an offence punishable Under Section 138 of N.I. Act by following the guidelines of Apex Court issued in Indian Bank Association case and ordered 4 C.C.No.51838/2021 to be registered a criminal case against the accused for the offence punishable Under Section 138 of N.I. Act.
4. After issuance of summons, accused appeared before the court and enlarged herself on bail. Plea was recorded, read over and explained to the accused, who pleads not guilty and claims to be tried. Hence, the case is posted for complainant's evidence.
5. The Complainant got examined himself as PW-1 and got marked documents Ex.P.1 to Ex.P.15.
6. Accused persons were examined U/S 313 of Cr.P.C. Incriminating evidence appearing in the complainant's evidence was read over and explained to the accused persons who denies the same. The Accused examined the Branch Manager of Axis Bank as DW1 and got marked documents Ex.D.1 to Ex.D.3, Ex.D3(A) to (I). The Accused not examined herself and closed her side.
7. Heard arguments of both side.
The learned Counsel for Accused has placed the following citations;
1. 2010 (4) Supreme 169 in the case of Rangappa V/s. Mohan 5 C.C.No.51838/2021
2. 2007 (6) KAR L.J. 609 in the case of H. Nanjundappa V/s. H. Hanumantharayappa
3. 2012 0 Supreme (SC) 842 in the case of M/s. Laxmi Dyechem V/s. State of Gujarat and others
4. High Court of Madras in Crl.O.P. No.17295/2016 and Crl.M.P. Nos 8275 and 8276/2016 in the case of D.V. Vanitha V/s. S.L. Vezhavendhan
5. 2022 (0) supreme (SC) 417 in the Dilip Hariramani V/s. Bank of Baroda
6. LAWS (KAR)-2023-7-1014 B.S.Arun Kumar V/s. Keshava Murthy M.G.
7. (2011) 3 SCC 351 in the case of Harshendra Kumar D. V/s. Rebatilata Koly and others The learned Counsel for Complainant has placed the following citations;
1. Manu/SC/0154/2019 in between Bir Singh V/s. Mukesh Kumar
2. Orders passed in SLP (Crl) No.3377/2019 in the case of K. Ramesh V/s. K. Kothandaraman
3. Orders passed in SIP (Crl) Nos.16641/2023 in the case of Ajitsinh Chehuji Rathod V/s. State of Gujarat and Another
4. Orders passed in Crl. Apl.No.2104/2018(A) in the case of H.B. Bhagyalakshmi V/s. Smt. Cheluvamma
8. Upon hearing the arguments and on perusal of the materials placed on record, the following points arise for my consideration.
1) Whether complainant proves beyond all reasonable doubts that accused in discharge of legally recoverable debt has issued a Cheque bearing No.078010 dated 21.12.2020 for 6 C.C.No.51838/2021 Rs.10,00,000/- drawn on Axis Bank Ltd., Sadashivnagar, Bengaluru. drawn on HDFC Bank, KK Nagar Chennai, in favour of the complainant which came to be dishonoured with an endorsement "account blocked" on 05.01.2021 and in spite of receipt of notice accused has not paid the Cheque amount and thereby committed an offence under Section 138 of N.I.Act?
2) What Order?
9. My findings on the above points is:
Point No.1: In the Affirmative Point No.2: As per final order for the following:
REASONS
10.Point No.1:-Existence of legally recoverable debt is a sine qua non for prosecuting the case under Section 138 of Negotiable Instruments Act. For convenient purpose the essential ingredients to constitute offence under section 138 of N.I.Act is summarized as below:
(i) That there must be a legally enforceable debt.
(ii) That the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes the legally enforceable debt.
(iii) That the cheque so issued had been returned due to "insufficient funds".
11. It is the core contention of the complainant that, the accused had obtained a handloan on various dates 7 C.C.No.51838/2021 amounting to Rs.20 lakhs in total, for their construction business and Accused No.2 repaid Rs.10 lakhs on various dates and thereafter the balance amount, Accused issued a post dated cheque bearing No.078010 dated 21.12.2020 for Rs.10,00,000/- drawn on Axis Bank Ltd., Sadashivnagar, Bengaluru. Due to medical urgency in his family, he had to get the cheque referred above discounted through an agent M/s. M. Prakash Jain HUF Represented by Mr. Mahavir Jain and Mr.Rajesh Jain, who presented the cheque or encashment, however the cheque was dishonoured with an endorsement as "signature mismatch" and the same was returned to Complainant, who accordingly presented the same with his banker HDFC Bank Ltd., Halasuru branch which as dishonoured with an endorsement "Account blocked" which was intimated to the by his banker on 5.1.2021. This fact was intimated to the accused, but the accused did not pay the cheque amount. Thereafter, the Complainant got issued a legal notice by RPAD on dtd.12.01.2021, which was served on the accused on 13.01.2021. Despite service of legal notice, the Accused has neither paid the cheque amount nor replied to the notice, Accordingly, the Complainant has filed present 8 C.C.No.51838/2021 complaint against the Accused for the offence punishable u/Sec.138 of N.I. Act.
12. In order to bring home the guilt of the accused, Complainant got examined himself as PW1 and reiterated the contents of complaint in his examination-in-chief. He has also placed the original No.078010 dated 21.12.2020 at Ex.P1, Ex.P2 and 3 are bank endorsements, Ex.P4 is office copy of legal notice issued by the Complainant to the Accused on 12.1.2021, Ex.P5 is postal receipt, Ex.P6 and 7 are postal acknowledgements, Ex.P8 is the reply notice, Ex.P9 and 1-0 are the bank accounts statements, Ex.P11 is the account head details issued by Service Tax Commissioner, Ex.P12 is the income tax return for the year 2022-23, Ex.P13 is the Certificate u/Sec. 65(B) of Indian Evidence Act, Ex.P14 is the Annual Tax Statement and Ex.P15 is the Certificate u/Sec.65(B) of Indian Evidence Act.
13. The documents produced by the complainant of course established that complainant meets out the procedural requirements of Section 138 of Negotiable Instrument Act, but 9 C.C.No.51838/2021 it is to be considered whether all these documents establish the offence committed by the accused.
14. The Negotiable Instruments Act raises two presumptions. One contained in Section 118 and the other in Sec. 139 thereof. For the sake of convenience Sec 118(1) of the N.I. Act is extracted here below:
118. Presumptions as to negotiable Instruments--
Until the contrary is proved, the following presumptions shall be made ;--
(a) of consideration that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration.
1. To (g) . . . . . . . . . . . .
Provided that where the instrument has been obtained from its lawful owner, or from an person in lawful custody thereof, by means of an offence of fraud, or has been obtained from the maker or accepter thereof by means of an offence of fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him".
10 C.C.No.51838/2021
15. Further Section 139 of the Negotiable Instruments Act reads as under:
"139, Presumption in favour of holder. It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in section 138, for the discharge, in whole or in part, of any debt or other liability."
Scope and ambit and function of the presumption U/s 118(a) and Sec 139 of NI Act came to be considered by the Hon'ble Apex Court of Indian in Krishna Janardhan Bhat Vs Dattatraya G.Hegde (2008 AIAR (Criminal 151) The Supreme Court has laid down the law in the following phraseology.
" D Negotiable Instruments Act 1881, Secs 139, 138--Presumption under-same arises in regard to second aspect of the matter provided under Sec 138-- Existence of legally enforceable debt is not a matter of presumption under Sec 139- It merely raises presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability - Merely an application of presumption contemplated under Section 139 of N.I.Act should not lead to injustice or mistaken conviction."
16. Further, said decision was followed by Hon'ble High Court of Karnataka in Kempanarasimhaiah Vs P.Rangaraju 11 C.C.No.51838/2021 & Others (2008 (5) KCCR 3371). Relevant paragraph of the said judgment reads as under: -
"12. As to the provisions of Sections 138 of N.I.Act, the following principles emerge from the above observations of Hon'ble Supreme Court at para Nos 21, 23, 25, 26 and 34 of its Judgment in the above said case of Krishna Janardhan Bhat Vs Dattatraya G.Hegde, AIR 2008 SC 1325.
(i) Section 139 of the Act merely raises a presumption that the cheque was issued towards discharge in whole or in part in any debt or other liability, which presupposed legally enforceable debt. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability." ( para 21)
(ii) The question as to whether the presumption stood rebutted or not, must be determined keeping in view the other evidences on record. Where the chances of false implication cannot be ruled out, the background fact and the conduct of the parties together with their legal requirements are required to be taken into consideration. (para 26)
(iii) An accused, for discharging the burden of proof placed upon him under a statute, need not examine himself.
He may discharge his burden on the basis of the materials already brought on records (para 23)
(iv) Standard of proof on the part of an accused and that of the prosecution in a criminal case is different. Further more where as prosecution must prove the guilt of an 12 C.C.No.51838/2021 accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is " preponderance of probabilities'" ( para 23 & 25)
(v) Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies ( para 25)
(vi) Other important principles of legal jurisprudence, namely presumption of innocence as human rights and the doctrine of reverse burden introduced by Section 139 should be deliberately balanced (para 34)
17. Thus from the observations extracted above, it is clear that presumption Under Section 139 of the N.I. Act is only to the extent that the cheque was drawn for discharge in full or in part of any debt or other liability and the said presumption do not relate to the existence of legally enforceable debt or liability. Therefore, before drawing the presumption under Section 139 of the N.I.Act, it is the duty of the Court to see whether or not the complainant has discharged his initial burden as to existence of legally enforceable debt. No doubt, as per Section 118(a) of the Act, there is a rebuttable presumption that every negotiable instrument, is accepted, endorsed, 13 C.C.No.51838/2021 negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration."
18. Factual matrix of the case is required to be tested on the anvil of principles emerging from the above-referred decisions.
19. The defense taken by the accused is that, Complainant stolen the Cheque from the office of Accused No.1 and forged the signature and filled up and presented the Cheque and filed false complaint against the Accused. It is further defence of the Accused that, complaint is barred by limitation.
20. To substantiate his claim, the Complainant himself examined as PW1. In the evidence he deposed that, the Accused obtained handloan on various dates totally Rs.20 lakhs for their construction business. It is further deposed that out of Rs.20 lakhs loan amount, the Accused repaid a sum of Rs.10 lakhs on various dates and for balance due of Rs.10 lakhs, Accused No.2 issued Ex.P1 Cheque in favour of Complainant. It is further submitted that due to medical urgency of family of Complainant, he referred Cheque through his agent 14 C.C.No.51838/2021 M/s. M. Prakash HUF represented by Mahaveer Jain and Rajesh Jain, who presented the Cheque for encashment, which was dishonoured with endorsement "drawer signature differs"
on 23.12.2020 as per Ex.P2. Thereafter, the Complainant re-
presented the Cheque on 30.12.2020, which was dishonoured for the reason "Account blocked" as per Ex.P3. He further deposed that thereafter, he issued legal notice to the Accused on 12.1.2021 as per Ex.P4, which was duly served upon the Accused as per Ex.P6 and 7. The Complainant has produced reply notice by the Accused as per Ex.P8.
21. In the cross-examination of PW1, he stated that, he is doing real estate business and also proprietor of M/s. Polar S. Properties. In the cross-examination PW1 stated that Rs.20 lakhs amount paid by him to Mr.Sanjeev Vahi in his office in the presence of Accused No.2. In the cross-examination he further stated Ex.P1 cheque was issued by Accused No.2. He further stated that, he has not having any documents to show that, Rs.20 lakhs amount paid to the husband of the Accused. It is denied by the PW1 that, he has not paid any amount to Accused No.2 or her husband. In the cross-examination he further stated that, Ex.P1 Cheque was handover by receptionist 15 C.C.No.51838/2021 of Accused No.1 office. He denied that, Ex.P1 Cheque was stolen by him. He further stated in the cross-examination that Cheque was dishonoured with reason "signature differ" as per Ex.P2 and he was visited Accused No.2 for enquiry of that but, Accused No.2 was not response to him. He further stated that on second presentation of Cheque, it was dishonoured with reason "Account blocked". In the cross-examination he unable to say that Accused No.1 bank account was freezed as per the direction of Dy. Commissioner of Commercial Tax (Audit-1.6) on 28.11.2019 and 25.6.2021.
22. During the course of arguments, the learned Counsel for Accused argued that as per the complaint, the Cheque was presented twice. As per Ex.P2 it was presented on 21.12.2020 and dishonoured with reason "Drawer's signature differ" and endorsement issued by the Punjab National Bank on 23.12.2020. Therefore, re-represented the Cheque on 30.12.2020 and same was dishonoured for the reason "Account blocked" and HDFC bank has been issued endorsement 30.12.2020 as per Ex.P3. The legal notice issued by the Complainant on 12.1.2021. In this regard, the learned Counsel for accused decision of Hon'ble High Court of Karnataka in 16 C.C.No.51838/2021 2007 (6) KLJ 609 in the case of H. Nanjundappa, deceased by his L.R. V/s. H. Hanumantharayappa, wherein the Hon'ble High Court held that;
"Sec.138 of N.I. Act - Cause of action - Cheque presented - Returned as 'account closed' - Re- presentation of Cheque again would not give rise to fresh cause of action - Cause of action arose on first presentation of Cheque. Hence, notice issued after second presentation is beyond time limit of 15 days - Barred by limitation. Held, the dishonour of Cheque on the ground of account closed may be technically within the meaning of legal phrase of insufficient of funds. But in a fact situation both are not always identical. In case of literal situation of insufficiency of funds in the account successive presentation may serve a purpose. The drawer could be given an opportunity to make good the funds in the account for honouring the Cheque on the second presentation. But in the case of 'account closed', the question of successive presentation makes no sense because, the account itself is not in existence, there is no possibility of having a fruitful result by successive presentation unlike in the case of insufficiency of funds. Therefore, whenever the Cheque is dishonoured on the ground of 'account closed', the payee cannot resort to successive presentation to save the limitation. So also, in the 17 C.C.No.51838/2021 case of dishonour of Cheque on the ground that, the signature does not tally with the specimen."
23. In the present case as stated above, on the first presentation of the Cheque, it was dishonoured with reason 'signature differ' and subsequently, it was presented second time, which was dishonoured with reason 'account closed' and notice was issued on 12.01.2021. From the first presentation cause of action comes within 30 days notice has been issued as well as second cause of action also notice issued within 30 days.
24. Accused has examined Branch Manage of Axis Bank as DW1. In the examination in chief he deposed that, as per the court summons, he appeared before the court and produced account details and account opening application and specimen signature of Accused No.1 documents are produced by him, which are marked at Ex.D1 to 3. In the cross- examination DW1 Bank Manager stated that the Accused No.1 is the proprietorship and Accused No.2 is the proprietrix. He identified signatures of Accused No.2 on Ex.D3, original current account opening form. That signatures are marked at 18 C.C.No.51838/2021 Ex.D3(A) to 3(I). He admitted in the cross-examination that, Ex.D3(A) signature is differ from Ex.D3(B) signature. He further admits that, there is differences in the signatures of the Accused as per Ex.D3(C) to 3(I). He further admits that, there is a slight difference between Ex.P1 Cheque signature and Ex.D3(A) to 3(I) signatures. Therefore, from the admission of the DW1 and on perusal of Ex.D3 and signatures of the Accused on Ex.D3 (A) to (I) are all differ from one to another. Therefore, it presumed that, Ex.P1 signature is belongs to the Accused No.2.
25. Further the learned Counsel for accused argued that as per the competent authority, the Accused No.1's bank account was freezed. During the time of arguments, the learned Counsel for accused filed memo along with copy of notice issued by the Commercial Taxes and letter issued by the Commercial Taxes to the Axis Bank. On perusal of both documents, it appears that, for recovering of tax dues from the Accused No.1 company, the notice has been issued u/Sec.45(1) of the K.V.A.T. Act, 2003 to the Axis Bank's Manager and in this regard, the learned Counsel for accused relied on 19 C.C.No.51838/2021 decision of Hon'ble High Court of Karnataka in B.S. Arunkumar V/s. Keshavamurthy M.G. wherein the Hon'ble High Court of Karnataka held in paragraph No.15 & 16 that;
"The Accused is not disputing his address to which the legal notice was sent, which is the same as the one given in the complaint as well as before this court. Having failed to send reply to the legal notice, the Accused has lost an opportunity to spell out his defence at the earliest available opportunity and bring forth the circumstances in which the Cheque in question has reached the hands of Complainant. Despite the same having regard to the reason for dishonour of Cheque, the burden is on the Complainant to show that the account was freezed at the instance of Accused or that after coming to know about the freezing of the Cheque, intentionally he has issued the subject Cheque in favour of Complainant knowing fully well that it is going to be dishonoured.
16 - Incidentally it was for the Complainant to prove that at the relevant point of time, he borrowed a sum of Rs.1.5 lakhs to order to lend it to Accused. It would have strengthened the case of the Complainant. Having failed to discharge this burden, the trial court cannot be found fault with for 20 C.C.No.51838/2021 acquitting the Accused and dismissing the complaint. The Complainant could have just summoned the bank official and examining him as to the reason for freezing of the account and whether this fact was brought to the notice of the Accused and in that event it would have helped to reduce the burden on Complainant and allowed the court to draw a presumption that, after coming to about the freezing of account, intentionally Accused had issued the Cheque."
26. In the present case, the Bank Manager of Axis Bank examined as DW1. But, in the examination in chief and cross- examination he has not stated about the freezing of account of Accused No.1. Further, at the time of evidence of DW1, nothing has been elicited in the mouth of Bank Manager with respect of freezing of the account. At the time of argument only the learned Counsel for accused submits the copy of notice by Dy. Commissioner of Commercial Tax. The letter issued by the Dy. Commissioner of Commercial Tax to the Bank Manager, it is for withdrawal of notice u/Sec.45 (1) of KVAT Act, 2003 in the case of Accused No.1 company. Therefore, freezing of account is does not arise. Therefore, the contention taken by the learned Counsel for accused is not sustainable. 21 C.C.No.51838/2021
27. It is defence taken by the Accused that, in the cross- examination that, the Complainant has been stolen the Cheque from her office and forged the signature and fill up the Cheque and presented. In this regard, the Accused No.2 has not filed any complaint for stolen of Cheque and further she has not taken any legal action against the Complainant for stealing the Cheque and misused the same by forging her signature. Even after receipt of notice also, she has not taken any legal action against the Complainant. Therefore, it presumed that, Ex.P1 Cheque was issued for discharge of legally enforceable debt. In this regard the learned Counsel for accused relied on decision of Hon'ble Supreme Court of India in the case of Bir Singh V/s. Mukesh Kumar wherein Hon'ble Supreme Court held that;
"Sec.139 introduces an exceptions to the General Rule as to the burden of proof and shifts the onus on the Accused. The presumption u/Sec. 139 of N.I. Act is a presumption of law, as distinguished from presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution to prove the case against the Accused beyond reasonable 22 C.C.No.51838/2021 doubt. The obligation on the prosecution may be discharged with the help of presumptions of law and presumptions of the fact unless the Accused adduce evidence showing the reasonable possibility of the non -existence of the presumed fact."
Further in the same decision, it is held that;
"Even if a blank Cheque leaf is voluntarily signed and handed over by the Accused towards sum payment would attract the presumption u/Sec.139 of the Act."
28. Therefore, by considering the oral and documentary evidence, it proved that, the signatures of the Accused No.2 are differ from one to another as admitted by the Bank Manager as DW1, who is competent to identify the specimen signatures with Cheque signature. Therefore, it presumed that, the Ex.P1 Cheque was issued by the Accused in favour of Complainant for repayment of remaining loan amount.
29. Therefore, it has to be presumed that the cheque in question was issued by the accused to discharge the legally recoverable debt or liability. The accused can place rebuttal evidence so as to show that the cheque was not issued for 23 C.C.No.51838/2021 consideration. As appreciated supra, accused has failed to put acceptable and satisfactory evidence to probability the defense. Therefore, there is no question of saying that the cheque was not issued for liability.
30. It is not specifically denied by the Accused that, Cheque not belongs to her bank account and also not specifically denied the signature on Ex.P1 Cheque. Therefore, complainant has discharged his initial onus laid on him. When he has discharged his initial onus, it raises presumption U/s 118(a) and 139 of Negotiable Instruments Act. Accused has failed to rebut the presumption either in cross-examining PW-1 or on her evidence.
31. So, far as sentence and compensation is concern, an offence punishable under Section 138 of N.I. Act, is a civil wrong and compensatory in nature, punitive is secondary, considering, the above settled principal of law with facts and circumstances of the case, which clearly reveals that, towards discharge of balance due amount, the cheque in question of issued by the accused to the complainant. Therefore, considering the nature of transaction, duration of pendency, 24 C.C.No.51838/2021 litigation expenses, I am opinion that, if sentence of fine of Rs.11,80,000/- (Rupees Eleven Lakhs and Eighty Thousand only) is imposed that would meet the ends of justice, accordingly, the accused is hereby sentenced to pay a fine of Rs.11,80,000/- (Rupees Eleven Lakhs and Eighty Thousand only) out of that, the complainant is entitled for a sum of Rs.11,75,000/- (Rupees Eleven Lakhs and Seventy-five Thousand only) as a compensation as per Sec.357(1) of Cr.P.C., remaining amount of Rs.5,000/-, is to be appropriated to the state, in case of default the accused shall under go simple imprisonment for a period of 6 months. Accordingly, the Point No.1 is answered in Affirmative.
32. POINT No.2 : In view of discussion held in Point No.1, I proceed to pass the following :
ORDER Acting U/S 255(2) of Cr.P.C., the accused No.1 and 2 are convicted for the offence punishable Under Section 138 of Negotiable Instrument Act.
Accused No.1 and 2 are sentenced to pay fine of Rs.11,80,000/- (Rupees Eleven Lakhs and Eighty Thousand only) in default Accused No.2 25 C.C.No.51838/2021 shall undergo simple imprisonment for 6 months. Further, it is made clear that out of fine amount, Rs.11,75,000/- (Rupees Eleven Lakhs and Seventy-five Thousand only) is to be paid to the complainant as compensation and Rs.5,000/- is ordered to be remitted to the State.
Bail bond stands canceled.
Supply the free copy of this judgment to the Accused forthwith.
(Dictated to the stenographer, transcribed by her, corrected by me and then pronounced in the open court on this 15th May, 2024) PARVEEN A Digitally signed by PARVEEN A BANKAPUR BANKAPUR Date: 2024.05.16 15:04:48 +0530 (PARVEEN A BANKAPUR) XXXIV ACMM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 Mr. B.R. Anand
2. Documents marked on behalf of complainant:
Ex.P.1 Original Cheque Ex.P.2 & 3 Bank endorsements Ex.P.4 Office copy of legal notice Ex.P.5 postal receipt Ex.P.6 & 7 Postal acknowledgement Ex.P.8 Reply notice Ex.P.9 & 10 Bank statements Ex.P.11 Account Head details Ex.P.12 Income Tax returns Ex.P.13 Certificate u/Sec.65 (B) of Indian Evidence Act Ex.P.14 Annual tax statement Ex.P.15 Certificate u/Sec.65(B) of Indian Evidence Act
3. Witnesses examined on behalf of Accused:
D.W.1 Mr. Mruthyunjaya
4. Documents marked on behalf of Accused:
Ex.D.1 Account opening form and related documents Ex.D.2 Bank account statement 26 C.C.No.51838/2021 Ex.D.3 Xerox copy Account opening form and related documents Ex.D.3(A)to(I) Signatures of Accused No.2 Digitally signed by PARVEEN A PARVEEN A BANKAPUR BANKAPUR Date: 2024.05.16 15:04:54 +0530 (PARVEEN A BANKAPUR) XXXIV ACMM, BENGALURU.