Bangalore District Court
Smt. Lakshmi Satish vs Mr. Paul Dinakar on 23 August, 2016
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITON
MAGISTRATE, BANGALORE CITY.
Dated this the 23rd day of August , 2016,
PRESENT: SRI. NAGARAJEGOWDA.D, B.Com., LL.B.,
XXII Addl.C.M.M., Bangalore City.
JUDGMENT U/S 355 OF Cr.P.C.
C.C.No. 10913/2016
Complainant : Smt. LAKSHMI SATISH
Wife of G.S.Satish Kumar,
Aged about 38 years,
Residing at No. 44, " Nanda",
15th Cross, 2nd Main, Near BDA Complex.
Annapoorneshwarai Nagar,
Bangalore - 560 091.
(By Sri.Ravi Law Asso.Adv.)
V/s.
Accused : Mr. PAUL DINAKAR,
Son of Mohan Shantha Kumar,
Aged about 30 years,
No.65, Ground floor-I,
Teacher's Layout,
Near Nagarabhavi circle,
Bangalore - 72.
(By Sri E.V.Ramana ,.Adv.)
Date of Institution 27-04-2016.
Offence complained of U/s 138 of N.I.Act.
Plea of the accused Pleaded not guilty
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Final Order Accused is convicted.
Date of Order : 23.08.2016.
The complainant filed the private complaint u/s 200 of
Cr.P.C alleging that, the accused person has committed an offence
punishable u/s 138 of N.I.Act.
REASONS
The brief facts of the complainant case is as follows:-
2. The complainant submits that, accused is engaged in the
business of Forex Trading. That a Memorandum of
Understanding is entered between the accused and complainant
on 10-01-2014. The complainant has invested an amount of
Rs.6,00,000/- by cash with the accused, by vacating their house
in which they were on lease(Mortgage). As per the said MOU,
accused has agreed to return the said amount after 11 months.
Further accused also agreed to pay a monthly 10% returns on the
investment. That the accused failed to pay monthly return as
agreed and also failed to return the invested amount of
Rs.6,00,000/-. The complainant demanded the accused to return
the said investment along with the agreed returns. On her
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persistent demands the accused has issued a cheque for
Rs.6,00,000/- bearing No. 749330 dated 12-12-2015 drawn on
ICICI Bank, Commissariat Road, Bangalore - 25 as part payment.
The complainant presented the above said cheque on 8-3-2016
for encashment through her bank, Bank of India,
Basaveshwaranagar Branch, Bangalore , But the said cheque
was dishonoured for the reason "Funds insufficient" as per bank
advise dated 09-03-2016. Thereafterwards, the complainant got
issued legal notice on 19-03-2016 to the accused, calling upon
the accused to pay the cheque amount . The notice sent by RPAD
was served to the accused on 28-03-2016 . Inspite of receipt of
legal notice, he did not replied or complied the notice and thus
accused committed the offence punishable u/s. 138 of NI Act and
punish the accused in accordance with law and to award suitable
compensation, in the interest of justice and equity.
3. The accused appeared before this court and contest this
case by denying the entire case of complainant at the time of
recording of Plea of Accusation . In order to prove the case of
complainant, she adduced her oral evidence as PW-1 by way of
affidavit and got marked Ex.P1 to Ex.P7 and this PW-1 has been
fully cross examined by the accused counsel and thus
complainant closed her side evidence.
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4. There afterwards, the accused examined u/s.313 of
Cr.P.C. in which, he totally denied the entire case of complainant .
He in support of his denial, lead his oral evidence as DW-1 on
Oath and this DW-1 has been fully cross-examined by the
complainant counsel and thus closed his side defence evidence.
5. I have heard the arguments of complainant and accused
counsel on merit. In support of his contention , the learned
counsel for the complainant relied on following citations in :
Criminal Appeal No.82-83/2016 SLP Crl. No. 4517-4518/14
Kerala High court 1999 Crl.L.J.2472
Delhi High Court
1(2007) BC 3
Accordingly, he prays for convicting the accused in accordance
with law.
6. In support of the case of accused, the learned counsel for
the accused also relied order passed on 28-7-2005 of Kerala High
court and Reserve Bank of India , foreign Exchange Department,
guidelines regarding overseas Forex trading through,
electronic/Internet trading portals- circular etc.. Accordingly, he
prays for acquittal of the accused in accordance with law.
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7. In order to prove the case of complainant, the
complainant adduced her oral evidence as PW-1 filed by way of
affidavit. In which, she reiterated complaint contention and got
marked Ex.P1 M.O.U. taken between the complainant and the
accused and identified the signature of both the complainant and
the accused as per Ex.P1(a) and Ex.P1(b). This execution of Ex.P1
MOU has been admitted by the accused and also admitted that
signature found on MOU belongs to this accused . Ex.P2 is the
mortgage deed dated 15-4-2011 taken between one Satish kumar
with J. Srinivasan. Ex.P3 is cheque alleged to be issued by the
accused and identified the signature of the accused as per
Ex.P3(a). This issuance of cheque in favour of complainant is
admitted by the accused but it was given as a security towards
the amount borrowed from the complainant for a period of one
month and he repaid the amount borrowed from the complainant
for that, accused has not produced any documentary evidence .
Ex.P4 is an endorsement issued by the bankers stating that Ex.P3
cheque was dishonoured due to "Funds insufficient". Ex.P5 is
the copy of legal notice . This notice does not contain the
signature of the complainant except her counsel . Ex.P6 is the
postal receipt for having sent legal notice to the accused. Ex.P7 is
the postal acknowledgement to show the legal notice sent to the
6 C.C.No.10913/2016
accused by RPAD was duly served . Inspite of service of legal
notice, the accused did not choose to reply or comply the notice
etc.. On the basis of oral and documentary evidence of
complainant, prima facie complainant proved the alleged guilt of
the accused.
8. In support of the case of complainant, the learned
counsel for the complainant relied on the decision of Criminal
Appeal No.82-83 of 2016 ( Don Ayengia Vs. The State of Assam &
Anr) on the file of Hon'ble Supreme Court of India . In which it is
held that , for the existence of debt/ liability was never disputed
by the accused . Hence, the presumption u/s. 139 of NI Act can
be drawn in favour of complainant. Further he also relied on
Judgment passed by the Hon'ble Kerala High Court in the case of
A.N.Nadarajan Vs. K.G.Nadarajan and Anr. Dated 10-03-1999. IN
which it is held that, for existence of debt or liability, the cheque
has been issued . Hence presumption can be drawn in favour of
complainant etc.. Further relied on the decision of Hon'ble Delhi
High Court in the case of Suresh Chandra Goyal Vs. Amit Singhal
dated 14-5-2015. In which it is held that Sec. 138 of NI Act, the
accused is to be convicted in accordance with law. Further relied
on the Banking Cases Digest 2007 Vol. I - 1(2007)BC 3 (
M.K.Philip Vs. Gainmore Investment ) in which, as per Kerala
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High court Sec.138 of NI Act dishonour of the cheque legally
recoverable debt etc....
9. On the basis of aforesaid decision coupled with the case
of complainant, complainant proved the alleged guilt of the
accused. Accused has admitted the receipt of loan of Rs.Six lakhs
from the complainant. But the alleged cheque in question was
issued for the purpose of security and he repaid the amount
borrowed from the complainant within a month for that, the
accused has not produced any corroborative evidence except
accused examined himself as DW-1 on Oath. In which he has
stated that, he knows the complainant , he was introduced
through his friend S.D.Patil during the month of June-July 2013
and he was given one business Idea at that time, for the purpose
of security he issued Ex.P3 cheque except the sign and name of
the complainant without mentioning the date he given the said
cheque but he repaid the amount borrowed from the complainant
of Rs.Six lakhs within the month . But the complainant did not
return the alleged cheque in question and he undertaken to
return the same but he did not returned the same and after
dishonour of the cheque , he received legal notice from the
complainant but he did not given any reply stating that he wanted
to ask the complainant and hence, he kept quite . In his cross-
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examination , he admitted the entire case of complainant and
also admitted that the signature found on Ex.P1 MOU belongs to
this accused and in this Ex.P1 MOU, there is no mentioning of
Ex.P3 cheque was issued for the purpose of security. Except
denial of contention of complainant, accused failed to given
rebuttal evidence . In support of the case of accused, the learned
counsel for the accused relied on the decisions of Hon'ble High
Court of Kerala in the case of J.Daniel Vs. The state of Kerala and
Anr. Dated 28-7-2005 in which, it is held that "After considering
evidence , trial court acquitted the 2nd respondent holding that
the petitioner failed to prove the service of statutory notice etc..
But in this case statutory notice duly served to accused but he
did not chose to reply or comply the notice . Hence, the said
decision is not squarely applicable to the case of accused.
Further relied on the Circular No. 53 of Reserve Bank of India
dated 7-4-2011 guidelines regarding Overseas forex trading
through electronic /Internet trading portals.. But the said circular
is not applicable to the case of accused to show that the
complainant made illegal transaction without obtaining the
permission from the Govt. of India etc.. These things an be
challenged by the accused before the concerned authority but he
admitted that Ex.P3 cheque was belongs to this accused but it
9 C.C.No.10913/2016
was given to the complainant as a security . Further also admitted
that he received sum of Rs.six lakhs from the complainant. As
such, whatever the contention taken by the accused will not
substantiate his case to disprove the case of complainant. As
such, the complainant is entitled to an amount of Rs.six lakhs
with interest @ 10% P.A. from the date of cheque , till realization
of the same as contended in para -2 of the complaint .
Accordingly, accused is liable for conviction. Accordingly, I pass
the following:
ORDER
Acting u/s 265 of Cr.P.C., the accused is convicted for the offence punishable u/s 138 of N.I.Act and sentenced to pay fine of Rs.3,000/- (Rs.Three thousand only) in default, to undergo S.I. for 03 months.
The complainant is awarded Rs.6,00,000/-(Rs.Six lakhs) i..e. the cheque amount as compensation with simple interest @ 10% P.A. from the date of cheque, till realization of the same and same shall be paid to the complainant within the period of 30 days from the date of this order. In default of payment of compensation amount , the accused shall undergo S.I. for a period of one year.
10 C.C.No.10913/2016Office is directed to furnish the copy of this Judgment at free of cost to the accused.
(Dictated to the Stenographer, transcribed and computerized by her, corrected and then pronounced by me in the open court on this the 23rd day of August, 2016) (NAGARAJEGOWDA.D) XXII ACMM, Bangalore city.
ANNEXURE Witnesses examined for the Complainant:
PW.1 : Lakshmi Satish Witness examined for the accused:
DW-1 : N.Paul Dinaker List of Documents marked for the Complainant:
Ex.P1 : MOU Ex.P2 Lease agreement Ex.P3 Cheque Ex.P3a : Signature of the accused Ex.P4 : Endorsement Ex.P5 : Legal notice Ex.P6 : Postal receipts Ex.P7 : Postal acknowledgement Ex.P7 : Reply notice.
List of Documents marked for the accused:
nil :
XXII ACMM, Bangalore.
11 C.C.No.10913/2016