Bangalore District Court
Sri. B.K. Nagesh vs Sri. M.R. Santhosh on 11 December, 2017
IN THE COURT OF THE XII ADDL. CHIEF METROPOLITAN
MAGISTRATE, AT BENGALURU
Dated this the 11th day of December 2017
Present: Sri. Rajkumar .S.Amminbhavi., B.Com., LLB (Spl)
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
C.C.No. 14784/2014
Complainant: Sri. B.K. Nagesh
S/o. Late Konegowda
Aged about 31 Years
R/at. No.28, 2nd Floor
8th Main Road, Mohankumar
Nagar, Yeshwanthapur
Bengaluru-560 022.
(By K.H.Prabhu. Adv)
- Vs -
Accused: Sri. M.R. Santhosh
S/o. Late Rangappa
Aged about 25 Years
R/at No.2/221, Chikkabanavara
Kallu, Bengaluru North Taluk
Bengaluru-560 073.
And also at :-
Sri. M.R. Santosh
S/o. Late Rangappa
Musukunduru Koppalu
Haladahalli Post
Malpathu Hobli
Arakalugudu Taluk
Hassan District.
(By. Balaram .M.L. Adv)
2 CC No.14784/2014
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: 11.12.2017
******
JUDGMENT
This is a complaint filed by the complainant 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 family friends and thereby, they are very well known to each other from past several years. On account of well acquainted with the complainant, the accused has approached the complainant and requested financial assistance of Rs.1,60,000/- as hand loan in order to meet out his financial 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.1,60,000/- to the accused and the accused had agreed to repay the said amount on or before end of November 2012. 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 cheques bearing No.194993, 3 CC No.14784/2014 dated:13.12.2012 for a sum of Rs.1,60,000/- drawn on Karnataka Bank Limited, Sriramapuram Branch, Bengaluru 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 for encashment through his banker i.e., Corporation Bank, S.C.Road Branch, Benglauru, but it was dishonoured with an endorsement as "Funds Insufficient" on 14.12.2012 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 24.12.2012 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 loan amount nor replied it. 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 in 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 4 CC No.14784/2014 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 18 documents marked as Ex.P.1 to Ex.P.18 and when the case was posted for cross of PW-1 and subsequently, inspite of giving sufficient opportunity, neither the accused nor his counsel, they have either failed to appear before this Court or failed to cross-examine the PW-1 and to that effect NBW has been issued against him and same was and is un-executed and accordingly, his bail bond stand cancelled and his cash surety amount deposited by him at the time of enlarged on bail same was forfeited to the state, the accused has not at all challenged the evidence of PW-1 and the present case is summary trail and quasi-criminal in nature and thereby, the recording the statement of the accused under Section 313 of Cr.P.C., is dispensed with. As per the new amendment under Section 145(2) of N.I.Act., inspite of giving sufficient opportunity, neither the accused nor his counsel, they have failed to file an application adduce their defence evidence. Since, the present complaint is summary trail and quasi- criminal in nature Hence, defence evidence is taken as no evidence. I am relying the citation reported in AIR 2014 SC 2528 Indian Bank 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 5 CC No.14784/2014 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.194993, dated:13.12.2012 for a sum of Rs.1,60,000/- drawn on Karnataka Bank Limited, Sriramapura 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;
REASONS
8. POINT NO.1: On perusal of the evidence of PW-1 she has reiterated as per the averments made in the complaint and he has got marked 18 documents namely, cheque which is marked as Ex.P1, the signature of the accused therein 6 CC No.14784/2014 which is marked as Ex.P1(a), bank endorsement which is marked as Ex.P2, the office of the legal notice which is marked as Ex.P3, postal receipt which is marked as Ex.P4, returned RPAD postal cover which is marked as Ex.P5, the certified copy of the income tax acknowledgment which are marked as Ex.P6 to Ex.P8, certified copy of statement of income tax which is marked as Ex.P9, certified copy of the computer-generated receipt issued by the Corporation which is marked as Ex.P10, certified copy of the IT verification form the year 2012-13 which is marked as ex.P11, certified copy of the statement of income consisting of three sheets which is marked as Ex.P12, certified copy of the income tax returns verification from for the year 2013-14 which is marked as Ex.P13, certified copy of the computer generated receipts given by the Corporation bank which is marked as Ex.P14, certified copy of the statement of income tax for the year 2013-14 which is marked as Ex.P15, certified copy of the income tax returns verification from with statement of income consisting of three sheets which is marked as Ex.P16, certified copy of the endorsement given by the Corporation by the bank which is marked as Ex.P17, certified copy of the profits and loss account ending which 31.03.2014 with balance sheet which marked as Ex.P18.
9. Though the case was posted for cross of PW-1. Inspite of giving sufficient opportunity neither counsel for the accused nor the accused, they have failed to cross-examine the PW-1. Hence, cross of PW-1 is taken as no cross. Since 7 CC No.14784/2014 the present complaint is summary trial in nature and thereby, recording the statement of accused under Section 313 of Cr.P.C., is dispensed with and inspite of giving sufficient opportunity, he has failed to adduce his defence evidence. Hence, defence evidence is taken as no evidence and after heard the arguments, the case is posted for judgement.
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 claims 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 evidence, the accused had failed to cross examine the PW-1 and failed to defend his case by adducing his defence evidence.
8 CC No.14784/201411. 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. There is no any ambiguity on perusal of Ex.P1. 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 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 9 CC No.14784/2014 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. Hence, in this case also in the absence of the accused, the Court will pass the judgment.
10 CC No.14784/201414. 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. Further, considering the conduct of the parties to this proceedings, the complainant has filed the present complaint in the year 2013 already 4 years have lapsed and awarding cost of litigation, an amount of Rs.20,000/-, since the trail faced by the complainant it is just and proper to meet the ends of justice. Hence, the accused is liable to pay total sum of Rs.1,80,000/- to the complainant. Since the accused is not liable to pay fine amount to the state as at the time of enlarged on bail, he has deposited cash surety before this Court and that amount has been already forfeited to state as inspite of issuance of the NBW he has failed to appear before this Court. 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.
11 CC No.14784/2014 The accused shall pay a fine of
Rs.1,80,000/-. In default of payment of said
fine amount, the accused shall undergo simple imprisonment for two months.
Further, it is ordered that, said fine amount of Rs.1,80,000/- 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 11th day of December 2017).
(Rajkumar.S.Amminbhavi) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the complainant:
PW.1 B.K.Nagesh 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 receipt
Ex.P.5 Returned postal RPAD Cover
Ex.P.6 to 8 Three certified copy of the IT
acknowledgment
Ex.P.9 Certified copy of statement
12 CC No.14784/2014
Ex.P.10 Certified copy of Computer Generated
receipts issued by the Corporation Bank Ex.P.11 Certified copy of the IT verification form for the year 2012-13 Ex.P.12 Certified copy of the statement of income consisting of three sheets Ex.P.13 Certified copy of the income tax returns verification from for the year 2013-14 Ex.P.14 Certified copy of the Computer Generated receipt given by the Corporation Ex.P.15 Certified copy of the statement of income for the year 2013-14 Ex.P.16 Certified copy of the income tax returns verification form with statement of income consisting of three sheets Ex.P.17 Certified copy of the endorsement given by the Corporation bank Ex.P.18 Certified copy of the profits and loss account ending with 31.3.2014 with balance sheet 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.13 CC No.14784/2014
(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.
The accused shall pay a fine of
Rs.1,80,000/-. In default of payment of said
fine amount, the accused shall undergo simple imprisonment for two months.
Further, it is ordered that, said fine amount of Rs.1,80,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C.14 CC No.14784/2014
The bail bond and surety bond of the accused stands cancelled.
Free copy issued to the accused.
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
15 CC No.14784/2014Heard Inference 16 CC No.14784/2014