Bangalore District Court
Is Represented By Its Branch Manager vs Has Subscribed For The Ticket No.25 In ... on 5 October, 2021
CC No: 18840/2015
IN THE COURT OF THE VI ADDL. SMALL CAUSES JUDGE
& XXXI ADDL. CHIEF METROPOLITAN MAGISTRATE,
BENGALURU CITY
DATED THIS THE 5th DAY OF OCTOBER 2021
PRESENT: Smt. Shainey. K.M., B.A.L.,LL.B.,.
VI Addl. Small Causes Judge &
XXXI ACMM, Bengaluru.
C. C.NO.18840/2015
JUDGMENT U/S 355 OF Cr.P.C.1973
1. Sl. No. of the case : C.C. No. 18840 of 2015
2. The date of commission of
the offence : 24.07.2015.
3. Name of the Complainant : :M/s Sree Gowri Ganesha
Chits Private Limited,
A Company Incorporated
under the Companies Act,
1956 having its Registered
and Admin Office at
No.307, 1st Floor, 2nd Main,
7th Cross, Domlur Layout,
Bangalore-71.
Promoted by Rajajinagar
Branch, Represented by its
SCCH-2 2 C.C. 18840/2015
Branch Manager,
Mr. Chandrashekaraiah G.
(By Sri. D.V. Venkatesh,
Advocate)
4. Name of the Accused : Smt. Radha S.,
W/o Sri. Srinath B.S.,
Aged about 31 years,
R/at No.70, 7th Main Road,
2nd Phase, 4th Block,
Banashankari 3rd Stage,
Bangalore-560 085.
(By Sri R. Srinivas,
Advocate)
5. The offence complained : Under Section 138 of
the of or proves Negotiable Instruments Act
6. Plea of the accused : Pleaded not guilty
and his examination
7. Final order : Accused is convicted
8. Date of such order : on 5.10.2021
for the following;
SCCH-2 3 C.C. 18840/2015
JUDGMENT
This complaint is filed by the complainant against the accused under Sec.200 of Cr. P. C. for the offence punishable under Section 138 of the Negotiable Instruments Act. Cognizance of the offence was taken on presentation of the private complaint by the Hon'ble 27th ACMM, Bengaluru and ordered to register the criminal case, as there were prima facie materials to proceed against the Accused. During the stage of trial this case has been withdrawn and transferred to this court as per notification no: ADM 1(A) 19/2017 of Honble CMM, Bangalore.
2. It is contended that, complainant is a company in corporate under the Companies Act 1956 and it promotes business of conducting chits. The complainant is represented by its branch manager namely Chandrashekaraiah G., who is authorized to file SCCH-2 4 C.C. 18840/2015 the present complaint in view of the decision taken in the meeting of the board of directors of the complainant's company held on 14.07.2015. The accused has subscribed for the Ticket No.25 in the Chit Group No.GTL-RJN-02, Chit Amount of Rs.3,00,000/- for duration of 30 months installments and subscription payable was Rs.10,000/- per month. In the second auction held on 15.10.2013 forgoing a discount of Rs.90,000/- (including complainant companies commission) and is in receipt of the prize amount from the complainant. The accused has guaranteed the repayment of the future chit liability. It is alleged that, accused has been a chronic defaulter in payment of chit installments and she was not regular in payment of chit subscriptions. Inspite of request and demands, the accused has not chosen to discharge the chit liabilities. The accused approached the complainant and agreed to discharge chit liabilities a sum of Rs.2,06,988/- with SCCH-2 5 C.C. 18840/2015 respect to Ticket No.25. The accused has issued cheque bearing No.000020 dated:20.05.2015 drawn on HDFC Bank, Girinagar Branch for payment of chit liabilities.
3. On representation of the above cheque through complainant's banker, the same were returned dishonoured with an endorsement ''funds insufficient'' on 01.06.2015. Thereafter, the complainant got issued legal notice on 15.06.2015 through RPAD, as contemplated under Section 138(b) of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the NI Act"), to the accused to make payment of the cheque amount and same is returned as "no such person". Despite due service of notice, accused failed to pay the amount covered under cheque within statutory period of notice of demand. Hence, this complaint.
4. On being served the summons, the accused appeared through her counsel and she was released on SCCH-2 6 C.C. 18840/2015 bail. Plea of the accused was recorded by explaining the substances of accusation. Accused pleaded not guilty and claims to be tried. The Accused filed application under Section 145(2) of N I Act, seeking permission to cross-examine Complainant and to proceed in accordance with Law. Accordingly, the application is allowed and the Accused is permitted to cross-examine Complainant/PW-1.
5. The Complainant in support of the case got examined one Shivakumar, GPA Holder of Complainant Company as PW-1 in post-summons stage and produced 14 documents marked at Ex.P:1 to Ex.P:14. The accused did not cross examine PW-1 in spite of sufficient opportunity. The accused remained absent. Hence, cross-examination of PW-1 was taken nil. Defence evidence also taken as nil and posted the case for judgment.
SCCH-2 7 C.C. 18840/2015
6. Heard arguments of learned counsel for complainant, arguments of accused is taken as nil.
7. Following points that arise for my consideration;
POINTS
1. Whether complainant proves beyond all reasonable doubt that accused has committed an offence punishable under Section 138 of Negotiable Instruments Act?
2. What order?
8. My findings to the above points are:
Point No.1 : In the Affirmative. Point No.2 : As per the final order for the following;
REASONS
9. POINT NO.1: In proof of the complainant's contention, GPA Holder of complainant company namely Sri. Shivakumar got himself examined as PW1 in SCCH-2 8 C.C. 18840/2015 post-summons stage has deposed in consonance with the averments of the complaint. In affidavit, PW1 has deposed that, the accused has subscribed in chit business of the complainant company and he participated in the chit auction, offered the highest bid, agreeing to forgo a sum of Rs.90,000/- as a discount amount which was duly confirmed by the complainant and he received prize amount of Rs.1,64,152/- on 17.01.2014 by executing required documents including on demand promissory note, consideration receipt, surety etc., in favour of the complainant. P.W.1 further deposed that, after receiving the prize amount, the accused has failed to make payment of the chit installment and thereafter he became defaulter. P.W.1 further deposed that, after several reminder, request and visit of the representative of complainant company, the accused has issued a cheque in question for Rs.2,06,988/-, which is produced and marked at Ex.P1. SCCH-2 9 C.C. 18840/2015 Accordingly, complainant has presented the said cheque for encashment and the same was returned unpaid as 'insufficient funds" as per the Bank Memo produced at Ex.P2. Hence, he got issued legal notice through RPAD which is produced at Ex.P3. The postal receipt is marked at Ex.P 3 (a). The returned Postal cover is marked at Ex.P4 and the notice in Ex.P4 is marked as Ex.P4(a). To prove the chit transaction and receipt of Rs.1,64,152/- by the accused in auction, P.W.1 has produced Ex.P.5 the payment voucher issued by the complainant, which was duly signed by the accused herein. The accused has agreed to pay Rs.2,10,000/- and she executed payment receipt in the presence of witnesses, which is marked as Ex.P.6. To prove the chit transaction and the amount received by the accused in respect of Ticket No.25 in the auction held on 30.09.2013, the complainant has produced the promissory note executed by the accused in favour of SCCH-2 10 C.C. 18840/2015 complainant and same is marked as Ex.P.7. The signature of the accused found in Ex.P.7 is not in dispute. The agreement of guarantee executed by the accused is marked as Ex.P.8. The surety-security proposal form signed by the accused, who was the successful bidder on 15.10.2013 is marked as Ex.P.9. Srikanth and Avainash are surety for this chit transaction. To prove chit transaction, the complainant has produced chit agreement got executed between the complainant and accused at Ex.P.10. Ex.P.11 is the Auction Detail. The statement of account in respect of accused maintained by the complainant chit business is marked as Ex.P.12. The chit commencement certificate issued by Deputy Registrar Chit Fund, North Zone, Bengaluru Urban District is marked as Ex.P.13. Deputy Registrar Chit Fund has accorded permission to run chit business and it is evident from perusal of Ex.P.14. The extract of Resolution passed in the meeting of the SCCH-2 11 C.C. 18840/2015 Board of Directors held on 12.02.2017 authorizing Shivakumar to give evidence before the court and to do all acts on behalf of complainant is produced before the court, however same not been marked in evidence.
10. On perusal of the oral and documentary evidence placed by the complainant, it reveals that the complaint is filed well within time in accordance with the provisions of Negotiable Instruments Act. Moreover, there is no dispute with regard to taking cognizance of the offence punishable under Section 138 of N I Act.
11. In the present nature of cases the court has to determine whether version of complainant is true or the theory put-forth by the accused is true?.
12. At the outset, an essential ingredient of Section 138 of N.I Act is that the cheque in question must have been issued towards legally enforceable debt. Under Section 118 of the Act, a presumption shall be raised SCCH-2 12 C.C. 18840/2015 regarding consideration, date, transfer, endorsement and regarding holder in the case of negotiable instruments. Even under Section 139 of the Act, a rebuttable presumption shall be raised that, the cheque in question was issued regarding discharge of legally enforceable debt. These presumptions are mandatory provisions that are required to be raised in case of negotiable instruments.
13. Keeping in mind the position of law as stated supra, let me deviate to appreciate the evidence of PW-
1. In this case PW1 is not cross examined by the accused. Hence, cross examination of PW1 is taken as nil. Despite sufficient time, the accused did not even cross examine PW1. Added to this accused has not adduced defence evidence to rebut the evidence of complainant. As per the guidelines laid down in AIR 2014 SC 2528 in case of Indian Bank Association Vs- Union of India, the case is posted for judgment. SCCH-2 13 C.C. 18840/2015
14. In the instant case, the evidence placed by the complainant herein has remained unchallenged. The complainant has stated supra to substantiate the claim, has produced Cheque at Ex.P1, which said to have been issued by the accused in discharge of debt. It is relevant to point out that during the time of recording substance of the accusation, the accused has denied the transactions between herself and the complainant. But, in support of her defence the accused has not cross examined PW1, so as to disprove the contention of the complainant and to prove her defence, as pleaded during the time of recording plea. There is no rebuttal evidence to disbelieve the evidence of Pw:1. Hence, the say of the complainant has to believed.
15. The complainant has produced Ex.P.5 to Ex.P.12 to prove the alleged chit transaction between the parties and receipt of amount by the accused in auction held on 15.10.2013. Ex.P.13 and Ex.P.14 discloses that, SCCH-2 14 C.C. 18840/2015 Deputy Registrar has permitted the complainant to run chit business in dispute. The signature of accused found in Ex.P.6 to Ex.P.10 is not in dispute. The accused has issued cheque to complainant, it indicates that the accused has failed to rebut the presumption, which is in favour of complainant. As appreciated and discussed supra, the complainant has proved by placing convincing evidence to show that accused is due of payment of cheque amount. To repay the liability accused had issued Ex.P-1 cheque.
16. At the outset it is necessary to point out that the accused though denied the existence of debt. The accused did not take legal action against the complainant for having misused the cheque. Therefore, on this point also the defence of accused is not acceptable. In this connection it is not out of place to refer a decision reported in 2006 Crl. L. J. 3760 in case SCCH-2 15 C.C. 18840/2015 of Smt. Umaswamy Vs- K. N. Ramaiah; wherein the Hon'ble High Court of Karnataka has observed at para 4 of its judgment that;
"The cheque whether issued for payment of debt or as security makes no distinction in law. The cheque is a negotiable instrument, it may be that sometimes the cheque is issued with a request on the part of the drawer to defer the presentation of the cheque for some time to enable the drawer to make payment by cash and take back the cheque or allow time to arrange funds for encashment of cheque. When the amount is not paid as per oral understanding the payee is well justified to present the cheque for encashment. The cheque even if it is issued as a security for payment, it is negotiable instrument and encashable security at the hands of payee. Therefore, merely because the drawer contends that it is issued as security is not a ground to exonerate the penal liability u/s. 138 of the N. I. Act."SCCH-2 16 C.C. 18840/2015
17. As observed in the above citation, 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 consideration. As appreciated supra accused has failed to put acceptable and satisfactory evidence to probabilise the defence. Therefore, there is no question of saying that the cheque was not issued for liability.
18. In the light of the discussion hereinabove, I am of the considered opinion that the complainant has proved that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. Accordingly, I answer point No.1 in the affirmative.
19. POINT No.2:- The Negotiable Instruments Act is a special Enactment, the provisions of the Act prevail over the general provisions contained in Code of SCCH-2 17 C.C. 18840/2015 Criminal Procedure. Therefore, keeping the relevant provisions of the Act in mind the sentence is to be passed. In the light of the reasons on the point No.1, I proceed to pass the following;
ORDER The accused is convicted under Section 255(2) of Cr.P.C., for the offence punishable under Section 138 of the Negotiable Instruments Act, and she is sentenced to pay a fine of Rs.2,11,988/- (Rupees two Lakhs eleven thousand nine hundred and eighty eight only). In default to pay fine the accused shall undergo simple imprisonment for a period of three months.
Further, acting under Section 357(1)(a) of Cr.P.C., out of fine amount of Rs.2,11,988/- a sum of Rs.5,000/- (Rupees five thousand only), shall be defrayed as prosecution expenses to the state.
Further, acting under Section 357(1)(b) of Cr.P.C., a sum of Rs.2,06,988/- (Rupees Two Lakhs Six Thousand Nine Hundred and Eighty SCCH-2 18 C.C. 18840/2015 Eight only), amount on recovery of fine shall be paid as compensation to the complainant.
Bail bond of the accused and that of surety shall stand cancelled.
Supply a free copy of this Judgment to the accused.
(Dictated to the stenographer through online, corrected by me and then pronounced in open court on this the 5 th day of October, 2021).
(Shainey. K.M.) VI Addl. Small Causes Judge & XXXI ACMM, Bengaluru.
ANNEXURE LIST OF WITNESS EXAMINED ON BEHALF OF THE COMPLAINANT:
P.W.1 : Sri. Shivakumar S. LIST OF DOCUMENTS MARKED ON BEHALF OF COMPLAINANT:
Ex.P.1 Original Cheque dt:20.05.2015 Ex.P.1(a) Signature of the accused.
Ex.P.2 Cheque Return Memo dt:30.05.2015
Ex.P.3 Copy of legal notice dt:15.06.2015
Ex.P.3(a) Postal Receipt.
Ex.P.4 Returned Postal Cover.
Ex.P.4(a) Returned Legal Notice.
Ex.P.5 Payment Voucher.
Ex.P.6 Payment Receipt.
Ex.P.7 Promissory Note.
SCCH-2 19 C.C. 18840/2015
Ex.P.8 Agreement of Guarantee.
Ex.P.9 Suredy/Security Proposal Form.
Ex.P.10 Chit Agreement.
Ex.P.11 Auction Detail Form.
Ex.P.12 Statement of Chit Account of accused.
Ex.P.13 Chit Commencement Certificate issued
by Deputy Registrar of Chit Fund.
Ex.P.14 Order of Deputy Registrar of Chit Fund
to run chit business.
LIST OF WITNESS EXAMINED ON BEHALF OF THE DEFENCE:
- Nil -
LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENCE:
-NIL-
(Shainey. K.M.) VI Addl. Small Causes Judge & XXXI ACMM, Bengaluru.