Bangalore District Court
M/S.Siddi Classes Pvt Ltd vs Sri.Deep Ranjan Ghosh on 15 December, 2018
IN THE COURT OF THE XXV ADDL. CHIEF
METROPOLITAN MAGISTRATE, AT BANGALORE
Dated this the 15th day of December , 2018.
Present: Smt Shirin Javeed Ansari -BA.LL.B(Hon's)LL.M
XXV Addl. Chief Metropolitan Magistrate,
Bangalore.
C.C.No. 688/2017
Complainant: M/s.Siddi Classes Pvt Ltd,
No.701 & 703
3rd floor, (Above Mc Donalds)
KVS Pinnacle
Ramamurthy Nagar main road
OMBR Layout, Banaswadi
Bengaluru 560043.
Represented by its Managing Director
Sri A.V.Ramana.
(By Sri KCC Advocate )
- Vs -
Accused: Sri.Deep Ranjan Ghosh
S/o Bibek Ghosh
aged 32 years,
R/at No.25/1, Haldar Para Road
Budge Budge
Kolkatta 700137
And also at
Sri. Deep Ranjan Ghosh
No.209, Sri Balaji PG, Lakshmi Nivas
Balaji Street, near Yeranapalya Bus
stop, Ramamurthynagar
Bangalore 16.
(By Sri MAS - Advocate )
2 C.C.No. 688/2017
Offence complained of: U/s.138 of Negotiable Instrument Act
Plea of accused: Pleads not guilty.
Final Order: Accused is Convicted.
Date of Judgment: 15.12.2018
JUDGMENT UNDER SEC.355 OF CR.PC
This is a complaint filed by the complainant
u/s.200Cr.P.C.against the accused person for the
offence punishable u/s.138 Negotiable Instrument Act
(Herein after called as the N.I.Act for reference)
2. The brief facts of the case of the complainant
are as under:
The complainant is in the business of
running classes of PCMB under the name and style
M/s.Siddhi classes for last several years. The accused
has been appointed as Senior Biology faculty and
salary was fixed at Rs.80,000/-pm and after
appointment the accused received the salary for 3
months and thereafter , the accused had gone on
3 C.C.No. 688/2017
vacation to his native place and not reported to his
job. When the complainant called the accused with
regard to non attending to the work, the accused
expressed to the complainant that the salary paid to
him is not sufficient and demanded for more salary.
The complainant submits that after considering the
request of the accused the complainant revised salary
from Rs.80,000/- to Rs.90,000/- and in this regard
appointment letter dt.6.7.2016 was issued.
3. The complainant has requested the accused
to hand over the original documents, ie. SSLC and the
post graduation certificates along with the xerox copy
of all the academic certificates with photo ID card, 2
blank cheques , last 3 months bank statement, or his
last pay slip, xerox copy of the PAN CARD . With
regard to submission of the originals, the accused had
given a letter to the complainant with revised salary
and later the accused will submit the certificate. The
complainant considering request paid revised salary
for 3 months without the accused submitting the
4 C.C.No. 688/2017
documents to the complainant. The accused has
failed to submit the documents later. Further as per
the attendance register maintained by the complainant
from October 3, to 21st,the accused was on leave and
thereafter from November 7th , the accused failed to
take the classes. The complainant came to know that
the accused has left the complainant institution.
4. The complainant further submits that as per
Clause 10 of the appointment letter, in the event of
the accused deciding to resign from the services of the
complainant , the accused will have to give 2 months
notice to the institution or pay to the institution
amount equal to 2 months gross emolument in lieu of
the notice, but, the accused has not given any prior
notice to the complainant with regard to leaving of the
institution. Till today the accused has not reported to
the institution.
5. The complainant further submits that the
frequent absence of the accused without permission or
intimation caused hardship and inconvenience to the
5 C.C.No. 688/2017
students and resulted in considerable impact on large
extent on the career of the students during the
academic session, for which the accused is solely
responsible for this.
6. It is further submitted that, the accused has
put management in very difficult position for making
alternative arrangement which caused loss of
reputation, good will and lost admission on account of
the accused. The complainant further submits that
the accused left the institution without intimation and
the accused has not paid the 2 months salary
amounting to Rs.1,80,000/- to the complainant as
agreed by him as per the terms of the appointment
letter for premature exist. The cheque bearing No.
000001 drawn on HDFC bank HRBR layout Kalyan
nagar, Bangalore issued by the accused toward the
recovery of 2 months salary is duly signed by him and
the same is presented by the complainant for
encashment on 14.11.2016 through his banker HDFC
bank, Kasturinagar, Bangalore. But to the shock of
6 C.C.No. 688/2017
the complainant , the said cheque returned for the
reason "payment stopped by the drawer"
dt.15.11.2016. The same was intimated to the
complainant on the next day. The complainant tried
to intimate about the dishonor of the cheque to the
accused, but, the accused did not receive the
complainant's call and avoided the same.
7. Further, the complainant issued legal notice,
to the accused to his both addresses on 8.12.2016
through RPAD calling upon the accused to pay the
cheque amount within 15 days from the date of
receipt of the notice. The notice, sent to the 1st
address of the accused is duly served on the accused
on 13.12.2016 . The notice, sent to the 2nd address
returned with postal shara "left residence" on
10.12.2016. Despite, of service of notice, the
accused has failed to either reply or pay the cheque
amount.
8. The accused being known to the complainant
and well aware of the consequences of the dishonor of
7 C.C.No. 688/2017
the cheque, the accused with dishonest intention to
cheat the complainant issued the cheque in question
and failed to honor the same on presentation, thus,
committed an offence punishable u/s.138 Negotiable
Instrument Act . Hence, the complainant prayed to
convict the accused and to award compensation in his
favour. Hence, this complaint.
9. The complainant has lead his pre summoning
evidence and has filed his affidavit in lieu of Sworn
Statement. Prima-facie a case has been made out
against the accused and he has been summoned vide
order of this court.
10. The accused appeared before this court on
3.4.2017 and he has been enlarged on bail . The
substance of accusation has been read over to him to
which, he pleads not guilty and claims to be tried.
11. In his post summoning evidence the
complainant has examined himself as PW 1 and filed
his affidavit, wherein, he has reiterated the averments
8 C.C.No. 688/2017
made in the complaint and got marked the documents
at Ex.P.1 to Ex.P.12.
12. The incriminating circumstances found in
the case of prosecution against the accused is read
over and explained to the accused in vernacular. The
accused denied the same. Accused got examined as
DW1 and got marked the documents at ExD.1 and
Ex.D.2
13. Heard both the sides and perused the
materials on record.
14. Upon hearing arguments, the following
points arise for my consideration:
1. Whether the complainant
proves that the accused has
committed an offence
punishable u/s. 138 Negotiable
Instrument Act ?
2. What order.
15. My answers to the above points are as
under:
Point No.1 : In the Affirmative.
9 C.C.No. 688/2017
Point No2 : As per final order for the
Following:
REASONS
16.Point NO.1: The complainant company is
incorporated under the Companies Act 1956 having
its registered office at Bangalore.
17. The complainant is in the business of
running classes of PCMB under the name and style
M/s.Siddhi classes for last several years. The accused
has been appointed as Senior Biology faculty and
salary was fixed at Rs.80,000/-pm and after
appointment the accused received the salary for 3
months and thereafter, the accused had gone on
vacation to his native place and not reported to his
job. When the complainant called the accused with
regard to non attending to the work, the accused
expressed to the complainant that the salary paid to
him is not sufficient and demanded for more salary.
The complainant submits that after considering the
request of the accused the complainant revised salary
10 C.C.No. 688/2017
from Rs.80,000/- to Rs.90,000/- and in this regard
appointment letter dt.6.7.2016 was issued.
18. The complainant has requested the accused
to hand over the original documents, ie. SSLC and the
post graduation certificates along with the xerox copy
of all the academic certificates with photo ID card, 2
blank cheques , last 3 months bank statement, or his
last pay slip, xerox copy of the PAN CARD . With
regard to submission of the originals, the accused had
given a letter to the complainant with revised salary
and later the accused will submit the certificate. The
complainant considering request paid revised salary
for 3 months without the accused submitting the
documents to the complainant. The accused has
failed to submit the documents later. Further as per
the attendance register maintained by the complainant
from October 3, to 21st,the accused was on leave and
thereafter from November 7th , the accused failed to
take the classes. The complainant came to know that
the accused has left the complainant institution.
11 C.C.No. 688/2017
19. The complainant further submits that as
per Clause 10 of the appointment letter, in the event
of the accused deciding to resign from the services of
the complainant , the accused will have to give 2
months notice to the institution or pay to the
institution amount equal to 2 months gross
emolument in lieu of the notice, but, the accused has
not given any prior notice to the complainant with
regard to leaving of the institution. Till today the
accused has not reported to the institution.
20. The complainant further submits that the
frequent absence of the accused without permission or
intimation caused hardship and inconvenience to the
students and resulted in considerable impact on large
extent on the career of the students during the
academic session, for which the accused is solely
responsible for this.
21 It is further submitted that, the accused has
put management in very difficult position for making
alternative arrangement which caused loss of
12 C.C.No. 688/2017
reputation, good will and lost admission on account of
the accused. The complainant further submits that
the accused left the institution without intimation and
the accused has not paid the 2 months salary
amounting to Rs.1,80,000/- to the complainant as
agreed by him as per the terms of the appointment
letter for premature exist. The cheque bearing No.
000001 drawn HDFC bank HRBR layout Kalyan
nagar, Bangalore issued by the accused toward the
recovery of 2 months salary is duly signed by him and
the same is presented by the complainant for
encashment on 14.11.2016 through his banker HDFC
bank, kasturinagar, Bangalore. But to the shock of
the complainant , the said cheque returned for the
reason "payment stopped by the drawer
dt.15.11.2016. The same was intimated to the
complainant on the next day. The complainant tried
to intimate about the dishonor of the cheque to the
accused, but, the accused did not receive the
complainant's call and avoided the same.
13 C.C.No. 688/2017
22. Further, the complainant issued legal
notice, to the accused to his both addresses on
8.12.2016 through, RPAD calling upon the accused to
pay the cheque amount within 15 days from the date
of receipt of the notice. The notice, sent to the 1st
address of the accused is duly served on the accused
on 13.12.2016 . The notice, sent to the 2nd address
returned with postal shara "left residence" on
10.12.2016. Despite, of service of notice, the
accused has failed to either reply or pay the cheque
amount.
23. The accused being known to the
complainant and well aware of the consequences of
the dishonor of the cheque, the accused with
dishonest intention to cheat the complainant issued
the cheque in question and failed to honor the same
on presentation, thus, committed an offence
punishable u/s.138 Negotiable Instrument Act .
Hence, the complainant prayed to convict the accused
and to award compensation in his favour.
14 C.C.No. 688/2017
24. In support of the case, the complainant
has produced the documents marked at Ex.P.1 to
Ex.P.12. Ex.P.1 is the Board resolution Ex.P.2 is the
appointment letter.P.3 is the bank challan. P.4 is the
cheque in question Ex.P.5 is the cheque return memo .
Ex.P.6 is the demand notice dt.8.12.16. Ex.P.6(a) (b)
are the postal receipts. Ex.P6(c) is the postal cover.
Ex.P.7 is the letter issued by the accused to the
Managing Director of the complainant company, .
Ex.P.8 to P10 are the email correspondence .
Ex.P.11 is the Certified copy of the cheque
dt.25.1.2018 of Rs.1,50,0000/- bearing 000002
Ex.P.12 is the Certified copy of the cheque return
memo .
25. Ex.D.1 is the summary of account as on
30.6.2016. Ex.D.2 is the pass book of HDFC Bank
pertaining to complainant company.
26. It is the defence of the accused that he
joined the service of the complainant company as
Biology lecturer in the month of April 2016. Initially
15 C.C.No. 688/2017
his salary was fixed at Rs.75,000/- pm, wherein after
the deductions a sum of Rs.67,500/- was to be paid
to him in hand. He has not signed any contract or
agreement at the time of joining the complainant
company, and his salary and terms and conditions
are fixed orally.
27. It is further submitted that, right from the
beginning, the complainant company was irregular in
paying the salary on timely basis . Instead of paying
Rs.67,500 for April 2016, towards the salary, the
complainant company has credited sum of
Rs.37,500/- to his ICICI bank account bearing
No.128301503064 on 9.5.2016 . The salary for the
month of May 2016 was paid in full i.e Rs.67,500/-
and the same is credited to his ICICI bank account on
10.6.2016. Towards the salary of June, 2016 only
Rs.42,000/- was paid by way of cash and he was
assured that the remaining Rs25,500/- would be paid
at the earliest. Inspite of repeated reminders and
request, the balance amount payable for April and
16 C.C.No. 688/2017
June 2016 was not paid. It is further submitted
that, when the salary was not being paid on timely
basis for the services rendered by the accused at the
institution of the complainant , the accused expressed
his displeasure to the management of the complainant
company and informed the complainant company's
authorized representative that he is quitting the job
for non payment of the timely salary. Since many
students were fond of the teaching of the accused and
personal attention that he was giving to the students,
many students were joining the institution of the
complainant to take benefit from the classes.
28. It is further submitted that, being
impressed with his teaching skills and intention to
retain him in the complainant company, the
complainant was pleased to enhance the salary to
Rs.90,000/-p.m. and after statutory deduction the
accused was to receive Rs.80,800/- p.m. with effect
from July 2016. Further , the complainant
requested the accused to stay till November , 2016 in
17 C.C.No. 688/2017
order to enable them to make alternative arrangement.
The accused agreed for this since he did not want to
put the complainant to trouble. The accused was
orally assured that the payment would be paid in full
and on timely basis.
29. Further in July 2016, the accused signed
and submitted form containing personal information
including name, address and email address etc., on
the instances of the complainant company,. Other
than this information submitted by the accused no
other terms and conditions were the part and parcel
of the document.
30. It is further submitted by the accused that
initially his salary was credited to his SB account
maintained with ICICI bank and subsequently from
July 2016, his salary was credited to his SB account
bearing No.50100151460074 maintained with HDFC
bank HRBR layout Bangalore. The salary of
Rs.80,800/- payable for July 2016 was credited to
his bank account on 13th August , 2016. The salary
18 C.C.No. 688/2017
of Rs.81,000/- payable for August 2016 was credited
to his bank account on 11th September, 2016. A sum
of Rs.30,000/- was paid towards salary for
September, 2016 on 5th October 2016 i.e by
unauthorisedly withholding sum of Rs.50,800/-
without any reason. The salary payable for the month
of October, 2016 has not been paid to his account
till date and left with no option but to leave the
complainant company as informed by him earlier to
the management in July 2016 when the salary
disbursement was not made on timely basis in full.
31. It is further submitted that, in the end of
July 2016, the accused was in need of money to
wriggle out his immediate financial commitments due
to non payment of salary by the complainant on
timely basis. He was introduced by Mr.Venkataramana
to his friend Mr.Madhu who offered the accused a
hand loan of Rs.1,00,000/- and as security towards
repayment of the loan, the accused had given 2
security cheques i.e bearing No.000001 & 000002 to
19 C.C.No. 688/2017
Mr.Madhu. The amount of Rs.1,00,000/- was credited
to his account by Mr Madhu on 29.7.2016.
32. It is further submitted that,
Mr.Venkataramna colluded with Mr.Madhu and
misused the cheque which was handed over to
Mr.Madhu and intentionally got returned the said
cheque and instituted false proceedings against the
accused with an intention to harass him. Along with
his defence , the accused produced the Savings Bank
Account statement maintained with ICICI bank
bearing no.128301503064 for the period from
1.4.2016 to 30.6.2016 and his bank pass book for the
SB Account bearing No. 50100151460074 for the
period from 29.7.2016 till 24.2.2017 for the
consideration of this court. Hence, on all these
grounds the accused prays to dismiss the complaint
with costs.
33. During the course of arguments, the learned
counsel for the complainant vehemently argued before
the court that the accused was an employee as faculty
20 C.C.No. 688/2017
in the institution of the complainant . He was duly
appointed on salary basis and on subsequent demand
made by the accused himself, the salary was raised to
Rs.90,000/-p.m. The complainant has produced the
appointment letter before the court. As per the terms
and conditions, of the said letter, the complainant
was entitled to remove the accused from the service
by issuing prior notice. Further the accused was at
liberty to resign from the job giving 3 months notice
and if fails to give 3 months prior notice, the accused
had to pay an amount equivalent to 2 months gross
emolument in lieu of the notice. The date of the relief
will be sole discretion of the complaint
34. It is argued by the learned counsel for the
complainant that the accused was not regular in his
duties, hence, warning was given to the accused. As
per the Articles Of Association of the complainant
company Mr.A.V.Ramana is empowered to prosecute
the present case and accordingly complainant has
been examined as PW1.
21 C.C.No. 688/2017
35. The letter of appointment of the accused is
so very clear that after agreeing the terms and
conditions the accused has put his signature on the
last page . In fact though basic salary of the accused
was Rs.80,000/- since, the accused blackmailed the
complainant by threatening to leave the job, the
complainant raised the salary from Rs.80,000/- to
Rs.90.000/- p.m. No salary was raised in appreciation
of work of the accused person . Despite, of that the
accused was not regular in attending his classes. The
accused finally left the job on 7.11.2016 . This
aspect of the matter has been admitted by the
accused himself in the email correspondence made by
him with the complainant company. The accused
though appeared before the court and lead evidence,
but absolutely failed to rebut the case of the
complainant. The accused himself has issued the
cheque in question in lieu of the notice which he was
supposed to give before resigning his job. Hence, there
exists legally enforceable debt . Hence all these
22 C.C.No. 688/2017
grounds the learned counsel for the complainant
prayed to convict the accused person and award
compensation in favour of the complainant.
36. On the other hand learned counsel for the
accused vehemently argued before the court that the
complaint is filed by the employer against the
employee . The complaint and the vakalathnama bears
no seal. The Board Resolution is produced by the
complainant as per Ex.P.1 dt.15.10.2017 and as on
the date of the complaint PW 1 is not authorized to
file the complaint. Before 15.10.17, no Board
Resolution is passed. Hence, nobody is authorized to
file the present complaint. Therefore, on this count the
complaint is liable to be dismissed.
37. It is further argued by the learned counsel
for the accused that no Articles Of Association, has
been produced. Ex.P2, the appointment letter issued
against the accused person has been created for the
purpose of this case. No where in the said document
Ex.P.2 it is mentioned that the accused has accepted
23 C.C.No. 688/2017
the terms and conditions . Basically the cheque in
question along with another cheque is given by the
accused person to one Mr.Madhu who is the friend of
the complainant for the purpose of security towards
the loan advanced by Mr.Madhu to the accused .
The complainant and Mr.Madhu colluded and
misused the cheques issued for the purpose of
security.
38. The complainant have not produced the
attendance registered to show that the accused was
not regular in attending his work and admittedly the
complainant have disbursed part of the salary in the
month of June , September and October. If at all the
accused was irregular to his work, why departmental
enquiry is not conducted against the accused. Infact
there was amount due from the complainant to the
accused pertaining to the salary. The salary of month
of October, 2016 has not been paid to the accused.
There exists no legally enforceable debt or other
liability against the accused in favour of the
24 C.C.No. 688/2017
complainant . The cheques issued by the accused to
one Mr Madhu have been misused by the complainant
in order to file this case. Hence, on all these grounds
learned counsel for the accused prayed to dismiss the
complaint as the same is not maintainable in the eyes
of law.
39. In the back ground I have gone through the
oral as well as documentary evidence of both the
sides. In support of its case complainant examined as
PW 1 and got marked Ex.P.1 to P.12. Ex.P.1 is the
authorization issued to Mr.Vekatramana to prosecute
the present case. Ex.P.2 is the appointment letter.
Ex.P.3 is the cheque deposit receipt. Ex.P.4 is the
cheque in question bearing no.000001
dt.14.11.2016. for Rs.1,80,000/- drawn on HDFC
bank. Ex.P.5 is the cheque return memo. Ex.P.6 is the
legal notice, P.6(a) (b) are the postal receipts. P6(c) is
the postal cover with acknowledgement. Ex.P.7 is the
letter issued by the accused to the complainant
company, ExP.8 to P10 are the email
25 C.C.No. 688/2017
correspondence. Ex.P.11 is the Certified copy of the
cheque standing in the name of Madhusudan Rao.
Ex.P.12 is the cheque return memo.
40. On the other hand, the accused has
produced Ex.D1 and ExD.2 ie the statement of
account extract from1.4.16 to 29.6.16 and the pass
book .
41. On careful and meticulous perusal of the
entire documentary evidence and the oral evidence on
record, it is clear that the accused was an employee of
the complainant company who was a biology lecturer
in the institution of the complainant . Initially the
accused joined the service on the salary of
Rs.80,000/- pm, subsequently enhanced
toRs.90,000/-p.m . Though the accused has disputed
Ex.P.1 , the appointment letter stating that when the
appointment letter was issued to the accused it
contained only personal information under letter head
of Siddhi Classes i.e complainant institution .Hence
he has signed on the said page. But after appearance
26 C.C.No. 688/2017
of the accused when the complainant lead his
evidence, the complainant has produced appointment
letter which contains 4 pages.
42. Absolutely no objections has been raised
either by the accused or his counsel the time of
marking the said document before the court. Ex.P.1
Cleary go to show that as per clause 9 and 10 the
complainant before removing the accused has to give
prior notice and if the accused happen to resign has
to give 2 months notice, or amount equivalent to 2
months gross emolument in lieu of notice. At the time
of appointment of the accused the complainant has
obtained SSC/Post Graduate original certificate, set of
xerox copies of AII Academic certificate, Xerox of
photo ID card , 4pass port size photos., 2 blank
cheques and last 3 months bank statement and pay
slip and xerox copy of the pan card.
43. No doubt these pages do not contain the
signature of the accused. But this aspect is disputed
only at the time of cross examination . But, at the
27 C.C.No. 688/2017
time of marking this document, the accused has
absolutely remained silent and not objected at all.
Therefore, from the production of ExP.2 ,it is clear
that at the time of appointment of the accused
they obtained 2 cheques from the accused person.
Interestingly it is suggested to PW 1 in his cross
examination that the complainant do not have any
authority to fill up the same for encashment in the
bank for which PW 1 has stated that as per Rule 9
and 10 of the appointment letter , the complainant
company, is entitled to fill the contents in the blank
cheque and present the same for encashment.
44. Though the accused have disputed the very
authority of the complainant to present the complaint
since no Board Resolution is passed at the time of
filing the complaint, but, subsequently the said
defect is cleared by the complainant by producing
Ex.P.1. the Board Resolution.
45. Further on perusal of the demand notice,
issued by the complainant , it is crystal clear that the
28 C.C.No. 688/2017
complainant have stated all the contents stated in the
complaint. It is stated in the demand notice, that as
per clause 10 of the appointment letter in the event of
accused deciding to resign from the service of the
complainant company, he will have to give 2 months
notice to the complainant company or an amount
equivalent to 2 months gross emolument in lieu of
notice. Since the accused has not given any such
notice prior to resigning to his job, they are
proceeding legally against the accused.
46. Further coming to the defence raised by the
accused in the cross examination as well as his
evidence, as well as the points raised at the time of
arguments are contrary to each other. In the defence
evidence, the accused has stated that in the end of
July 2016 when he was in need of money for his
immediate financial commitments, accused received
the loan from Mr.Madhu who is friend of PW 1. He
obtained loan of Rs.1,00,000/- and for security issued
the cheque in question and another cheque bearing
29 C.C.No. 688/2017
no. 000002 in favour of Mr Madhu. Said Mr Madhu
and the complainant colluded with each other and
filed the present case and the said cheque has been
misused for filing the present complaint. Further
during cross examination, the accused has stated
before for the court that he has lost his cheque book
hence, issued "stop payment" instruction to the
banker. The accused has stated that he does not
remember which cheque book he had lost in fact he
had lost the entire cheque book hence, given "stop
payment" instructions . This fact is mentioned in the
requisition given to the bank authorities , but does not
remember which cheque he had lost. The accused
states before the court that he had given requisition
with regard to the entire cheque book. Having
deposed this aspect of the matter in the cross
examination, accused has failed to produce the said
requisition given to the bank authorities. The non-
production of the said requisition at this juncture
itself creates a doubt on the defence of accused
30 C.C.No. 688/2017
person. Here the accused has raised 2 different
defence in this case. At one point of time during his
cross examination, the accused states that he had
given the cheque in question along with cheque
bearing No. 000002 to Mr.Madhu for having obtained
loan of Rs.1,00,000/- from him and at another point
during his cross examination, the accused states that
he has lost the entire cheque book hence given stop
payment instruction to the banker, but fails to
produce the said requisition . If at all the accused
had lost the entire cheque book and given requisition
to stop payment to this banker what was the
impediment for the accused to reply the demand
notice of the complainant and to produce the
requisition before the court. This itself clearly go to
show that the accused has not taken proper stand of
defence to rebut the case of the complainant . No
where in his examinatioin in chief the accused has
stated about loss of entire cheque book. All of sudden
in the cross examination new story is narrated before
31 C.C.No. 688/2017
the court about this. If the accused had produced the
requisition before the court at least that should have
probabalized the defence of the accused . But no such
effort has been made by the accused to produce the
said requisition given to the bank authorities in order
to probabalise his defence. Moreover, no materials
are forthcoming either in the chief examination or
cross examination of DW 1 for having taken any
action for loss of entire cheque book. This aspect of
the matter clearly go to show that the accused had
given the cheque in question along with another
cheque to the complainant at the time of appointment
as per the terms and conditions of the appointment
letter. The accused has not denied his signature
either in the notice , the appointment letter or in the
cheque. He has not denied that the cheque does not
belong to his bank account. This itself is sufficient to
show that the complainant has proved the issuance
of the cheque by the accused in favour of the
complainant . From this it becomes clear that the
32 C.C.No. 688/2017
accused himself issued the cheque to the
complainant at the time of appointment and since
the accused left the job without issuing 2 months prior
notice, the complainant as per Rule 9 and 10 of the
Appointment Letter, have filled the contents of the
cheque towards the amount equivalent to 2 months
emolument of the accused and presented the same for
encashment . As stated supra , the accused has
absolutely failed to prove his both defence before this
court . Therefore, under these back grounds facts and
circumstances, of the case, court is of the opinion
that the complainant is entitled for the benefit of
presumption enumerated u/s.118 and 138 of
Negotiable Instrument Act, and the complainant is
successful in proving his case beyond reasonable
doubt. Further the accused has miserably failed to
probabalize his defence . Hence, in view of this I
answer Point No.1 in the Affirmative.
33 C.C.No. 688/2017
47. Point No.2: In view of the reasons stated
and discussed above, the complainant has proved the
guilt of the accused for the offence punishable under
Sec.138 Negotiable Instruments Act .
Hence, I proceed to pass the following :
ORDER
Acting u/s.255(2) Cr.P.C accused is convicted for the offence punishable under Sec.138 Negotiable Instruments Act and sentenced to pay fine of Rs.2,05,000/- (Two Lakhs Five Thousand only) In default, shall under go SI for a period of 1 year.
Acting under Section 357 (1) (b) of Cr.P.C, out of the fine amount the complainant is entitled for Rs.2,00,000/- (Rs.Two Lakhs only) Acting under Section 357 (1) (a) of Cr.P.C, the remaining fine amount of Rs.5,000/- (Rupees Five Thousand Only) is confiscated to the State .
34 C.C.No. 688/2017Furnish free copy of judgment and order to convicted-accused.
(Dictated to the Stenographer directly on the computer, typed by her , corrected and signed then pronounced by me in the open court on this the 15th day of December, 2018)).
(SHIRIN JAVEED ANSARI ) XXV A.C.M.M., BANGALORE.
ANNEXURE
1) LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
P.W.1 : A.Venkata Ramana.
LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P1 : Board Resolution. Ex.P.2 : Appointment Letter.
Ex.P.3 : Bank Challan.
Ex.P.4 : Cheque
Ex.P.5 : cheque return memo.
Ex.P6 : Office copy of the demand
notice
Ex.P6(a)
(b) : Postal receipts.
Ex.P6© : Postal Cover.
Ex.P7 : Letter.
Ex.P8-10 : email correspondence.
35 C.C.No. 688/2017
Ex.P11 : Certified copy of the
cheque bearing No.000002 Ex.P12 : CC of cheque return memo .
2) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:-
DW1 : Deep Ranjan Ghosh.
3) LIST OF DOCUMENTS MARKED FOR THE ACCUSED:
Ex.D.1 : Summary of account. Ex.D2 : Pass book of HDFC Bank.
( SHIRIN JAVEED ANSARI ) XXV A.C.M.M.,BANGALORE.36 C.C.No. 688/2017