Bangalore District Court
Smt.Anita Sakuru vs Sri.Narayana Rao Atluri on 12 April, 2022
IN THE COURT OF THE XVIII ADDL.CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
PRESENT: MANJUNATHA M.S. B.A., LL.B.
XVIII ADDL.C.M.M., BANGALORE
DATED : THIS THE 12 th DAY OF APRIL 2022
Criminal Case No.18575/2017
COMPLAINANT: SMT.ANITA SAKURU
W/o Raghuveer Sakuru,
Aged about 47 years,
R/at Flat No.113, Jubilee
Cyber Ground, Madhopur,
Hyderbad
Presently R/at No.77,
Sai Durga Enclave
Agrahara Village,
Kogilu Cross, Yelahanka
Bangalore-560 097.
(By Sri.M.A.S- Advocate)
// Versus //
ACCUSED: SRI.NARAYANA RAO ATLURI
S/o Mallikarjuna Rao Atluri,
Flat No.A-403,
Aditya Hill Top, Jubilee Hills
Hyderabad-500033.
(By Sri.R.K - Advocate)
Offence complained : U/Sec.138 of Negotiable
Instrument Act.
Name of the complaint : Smt.ANITA SAKURU
2 Judgment C.C.185752017
W/o Raghuveer Sakuru,
Date of commencement
of evidence : 24.02.2018.
Date of closing evidence : 10-03-2022.
Opinion of the Judge : Accused found guilty.
(MANJUNATHA M.S.)
XVIII A.C.M.M.,BANGALORE
JUDGMENT
The complainant has filed this complaint under section 200 of code of criminal procedure read with section 138 of the Negotiable Instruments Act (in short referred as "N.I. Act") against the accused alleging that he has committed the offence punishable under section 138 of NI Act.
02. The sum and substance of the complaint is as follows: The complainant's mother and accused were family friends. On such acquaintance the accused has approached the complainant for hand loan of Rs. 2,50,00,000/- to start his business. Considering his request the complainant has paid Rs. 2,50,00,000/- over a period of 3 Judgment C.C.185752017 time from February 2016 to June 2016 and most amount paid in cash and receipt of the said amount the accused has executed 8 promissory notes in favour of the complainant agreeing to repay the amount along with interest at the rate of 1% per month. Subsequently on 30/12/2016, the accused has come forward and voluntarily execute MOU in favour of the complainant admitted the receipt of Rs.2,50,00,000/- and agreeing to repay the amount by 30-04-2017. Thereafter, As per his assurance the accused has issued 8 post dated cheques bearing No. 626138 for Rs.50,00,000/-, No.626139 for Rs.50,00,000/-, 626140 for Rs.25,00,000/-, 626141 for Rs.25,00,000/-, 626142 for Rs.25,00,000/-, 626143 for Rs.25,00,000/-, 626144 for Rs.25,00,000/- and 626145 for Rs.25,00,000/- all dated 30.04.2017. On the date of said cheques the complainant has presented the said cheques for encashment through her banker i.e., IDBI Bank Ltd., Yelahanka New Town Branch, Bengaluru but the said cheques were dishonored for "Funds Insufficient" on 25-05-2017. Thereafter, the complainant has got issued demand notice on 02.06.2017 to the accused by demanding the payment of cheque amount. The said notice was duly served on accused dated 06.06.2017. For that accused has issued untenable 4 Judgment C.C.185752017 reply notice dated 20.06.2017. Despite of the demand notice the accused has not paid the cheque amount and thereby he has committed an offence punishable under section 138 of N I Act.
03. After filing of complaint, this court has taken cognizance of the offence punishable under section 138 of Negotiable Instrument Act, sworn statement of the complainant was recorded. Being satisfied that there are prima-facie materials to proceed against accused, summons was issued. After appearance, the accused was enlarged on bail and his plea was recorded as per section 251 of Cr.P.C. The accused has not pleaded guilty but submitted that he has defense to make.
04. As per the direction of Hon'ble supreme court in "Indian Bank Association V/s Union of India and others reported in (2014) 5 SCC 590, the sworn statement of the complainant treated as complainant evidence and complainant has examined himself as PW1 by filing affidavit of chief-examination and got marked Ex.P.1 to 22. The accused has filed application under section 145(2) of NI Act for recall of PW1 for the purpose of cross-examination. The said application came to be allowed and defence counsel has fully cross- examined PW-1 and case was posted for statement of accused as 5 Judgment C.C.185752017 contemplated under section 313 of Cr.P.C. But he remained absent, hence 313 statement was dispensed and posted case for defence evidence. Thereafter, the accused led his defence evidence by examining himself as DW-1 and got marked Ex.D.1 to 3. The complainant counsel has partly cross examine the DW-1. Thereafter, the accused has failed to tender himself for cross examination. Hence, this court has discarded his evidence vide ordered dated:20.02.2021. Thereafter, the accused has filed application under section 311 of Cr.P.C. for reopeing the case for the purpose of tender himself for cross-examination. The said application came to be dismissed vide ordered dated:21.09.2021. The Accused has not challenged the said order till today. Hence, the said order attained finality . On perusal of the order sheet, its appears that, this court once again has posted the case for recording of statement of accused under section 313 of Cr.P.C. But, the accused remained absent. It is seen from the order sheet that when the matter was posted for statement of accused under section 313 of Cr.P.C., the accused remained absent and himself not available for the court to record the statement u/S 313 of Cr.PC. The said act of the accused has protracted the proceeding, which is against to the spirit of the 6 Judgment C.C.185752017 special enactment of Negotiable Instruments Act. It appears that the accused has intentionally evaded to appear before the court.
05. Hon'ble High Court of Karnataka in Crl. R.P No. 437/10 vide its Judgment dated 28-06-2012, held that it was for the accused to appear before the court and to have defended himself effectively and to make himself available for the court to record the statement u/S 313 of CrPC. In the Criminal Revision Petition the complainant has preferred the said revision before the High Court challenging the order of the 1 st appellate court in remanding the matter for fresh trial for non recording the statement of accused U/s 313 of Cr.P.C. The Hon,ble High Court of Karnataka has clearly held that there is no justification in the appellate court having held that there is failure of justice on account of the statement of the accused not having been recorded under Sec. 313 of Cr.PC. Hence, in the present case also the accused has tried to drag the proceedings and thereby caused inordinate delay. The Hon'ble High court has also discussed the settled law in respect of statement of accused U/s 313 Cr.P.C. by referring the decision of a three-judge bench of Hon'ble Supreme Court in the case of Basavaraj R Patil vs. State of Karnataka, (2000)8 SCC 740.
7 Judgment C.C.185752017
06. Hon'ble Supreme Court in the case of Indian Bank Association and others Vs Union of India and others reported in AIR 2014 SC 2528, while giving guidelines to the trial court dealing with case under section 138 of NI Act, the Hon'ble court has held that if the accused has not filed any application under section 145(2) of NI Act for recall of complainant for cross-examination, the court has to post the case straight away for defence evidence. Under such situation there is no stage for recording of statement of accused under section 313 of Cr.P.C. by putting incriminating evidence. Even in M/s. Cheminova India Ltd, Vs. Jaaji Pesticides in Crl. Appeal No. 376/2007 dated 25.2.2012, the Hon'ble High Court has not found fault in the trial court for dispensing the statement of accused under section 138 of NI Act. By relying the aforesaid judgments this court has dispensed the recording of statement of accused U/s 313 of Cr.P.C. and posted case for argument.
07. The complainant counsel has filed written arguments. Despite of giving sufficient opportunities the accused counsel has not addressed his arguments. Even he has not chosen to file written argument. I have perused the materials available on record.
8 Judgment C.C.185752017
08. In Mohd. Sukur Ali Vs. State of Assam reported in (2011) 4 SCC 729, the Hon'ble Supreme court held that we are of the opinion that even assuming that the counsel for the accused does not appear because of the counsel's negligence or deliberately, even then the court should not decide a criminal case against the accused in the absence of his counsel since an accused in a criminal case should not suffer for the fault of his counsel and in such a situation the court should appoint another counsel as amicus curiae to defend the accused. But in the case of K.S.Panduranga vs State Of Karnataka reported in (2013) 3 SCC 721 the Hon'ble Supreme court held that "Regard being had to the principles pertaining to binding precedent, there is no trace of doubt that the principle laid down in Mohd. Sukur Ali (supra) by the learned Judges that the court should not decide a criminal case in the absence of the counsel of the accused as an accused in a criminal case should not suffer for the fault of his counsel and the court should, in such a situation, must appoint another counsel as amicus curiae to defend the accused and further if the counsel does not appear deliberately, even then the court should not decide the appeal on merit is not in accord with the pronouncement by the larger Bench in Bani Singh". The 9 Judgment C.C.185752017 Hon'ble Court further held that in view of the aforesaid annunciation of law, it can safely be concluded that the dictum in Mohd. Sukur Ali (supra) to the effect that the court cannot decide a criminal appeal in the absence of counsel for the accused and that too if the counsel does not appear deliberately or shows negligence in appearing, being contrary to the ratio laid down by the larger Bench in Bani Singh (supra), is per incuriam. Furthermore the transaction alleged in the case is purely a commercial transaction entered into between two private individuals and the accused is not in judicial custody and he is not fall under any of the parameter under legal services authorities Act to get free legal aid. Under such circumstance question of appointing advocate for accused at the state cost may be not arise at all. Hence in view of the law laid down in K.S.Panduranga vs State of Karnataka case I proceeded to decide the case on merit.
09. The points that arise for my consideration are as follows;
1. Whether the complainant has proves that the accused has issued 8 cheques bearing No.626138 for Rs. 50,00,000/-, No. 626139 for Rs.50,00,000/-, No.626140 for Rs.25,00,000/-, No.626141 for Rs.25,00,000/-, No.626142 for Rs.25,00,000/-, 10 Judgment C.C.185752017 No.626143 for Rs.25,00,000/-, No.626144 for Rs.25,00,000/- and No.626145 for Rs.25,00,000/- all dated 30.04.2017 towards discharge of his liability, which was returned unpaid on presentation for the reason "Funds Insufficient" and despite of notice he has not paid the cheque amount and thereby committed an offence punishable under section 138 of Negotiable Instruments Act?
2. What Order?
10. My answer to the above points is as follows;
Point No.1: In the Affirmative.
Point No.2: As per final order for the following REASONS
11. POINT No.1: The Complainant has filed this complaint alleging that the accused has committed offence punishable under section 138 of N.I. Act. The complainant has pleads and asserts that, towards discharge of debt the accused has issued 8 cheques in question for Rs.2,50,00,000/-. She has presented the said cheques through her banker. The said cheques were returned with an endorsements "Funds Insufficient". Thereafter she got issued demand notice within time stipulated calling upon the accused to 11 Judgment C.C.185752017 pay the amount covered under cheques. Despite of service of notice, the accused has not paid the amount within 15 days, which gave raise cause of action to file this complaint.
12. To substantiate her case, the complainant has stepped into witness box and examined as PW.1 and got marked Ex.P-1 to Ex.P-
22. PW1 has reiterated the contents of the complaint in her affidavit evidence about lending of amount of Rs.2,50,00,000/- to the accused, issuance of cheques in question by the accused towards discharge debt and dishonour of cheques for funds insufficients, issuance of legal notice to the accused calling upon him to pay the amount covered under cheques and his failure to comply the same.
13. In this scenario, let me scrutinize the documents relied by complainant in order to examine the compliance of statutory requirements envisaged under section 138 of N.I. Act. Ex.P.1 to 8 are cheques dated 30-04-2017. The said cheques were returned unpaid with an endorsements "FUNDS INSUFFICIENT" as per Ex.P.9 Bank endorsements dated:25-05-2017, Ex.P.10 is legal notice dated 02.06.2017 under which the complainant has demanded the payment of cheques amount, Ex.P.11 is postal receipt, Ex.P.12 is 12 Judgment C.C.185752017 Postal acknowledgment, Ex.P.13 is Reply notice dated:20.06.2017, Ex.P.14 is Memorandum of Understanding, Ex.P.15 to 22 on Demand Promissory notes. This complaint came to be filed on 13- 07-2017. A careful scrutiny of the documents relied by the complainant goes to show that, statutory requirements of section 138 of N.I. Act have been complied with and this complaint is filed within time. Thus, complainant is entitle to relied on the statutory presumptions enshrined under section 118 read with section 139 of N.I. Act. Section 118 reads as here: - "That every negotiable instrument was made or drawn for consideration and that every such instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration". Further Section 139 of the Negotiable Instruments Act provides for presumption in favour of a holder. It reads as here:
- "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, or any debt or other liability." A combined reading of above said sections raises a presumption in favour of the holder of the cheque that he has
13 Judgment C.C.185752017 received the same for discharge in whole or in part of any debt or other liability.
14. No doubt, the said presumptions of law are rebuttable in nature. The accused can take probable defence in the scale of preponderance of probability to rebut the presumption available to the complainant. Let me examine whether the accused has successfully rebutted the said presumptions of law. The accused has specifically denied the borrowing of loan of Rs.2,50,00,000/- from the complainant and issuance of cheques in question for repayment of said alleged loan amount. The accused has put forth his defence that the, complainant has contested MLA election in the Andra Pradesh and she asked him to arrange election fund. Therefore on her request he issued Ex.P.1 to 8 cheques for the purpose of election found. The complainant has misused the said cheques to file a present case. The accused also questioned financial capacity of the complaint to lend such huge amount the relevant point of time. The accused specifically denied the executing Ex.P.15 to 22 D.P. Notes and Ex.P.14 MOU. The accused contended that Ex.P.1 to 8 cheques were not issued for discharge of any debt or liability as such section 138 of NI Act is not applicable to Ex.P.1 to 8 cheques .
14 Judgment C.C.185752017
15. As far as proof of existence of legally enforceable debt is concerned, it is profitable to refer the decision of full bench of the Hon'ble Apex Court reported in Rangappa Vs. Mohan reported in AIR 2010 SC 1898, Wherein their lordships pleased to observe that, "In the light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by section 139 of the Act does indeed include the existence of the legally enforceable debt or liability". In another decision reported in, (2015) 8 SCC 378 in the case of Vasanthakumar Vs. Vijayakumari, it is held that once the accused has admitted the issuance of Cheque as well as signature on it, the presumption under section 139 would be attracted. In K.N. Beena Vs Muniyappan and another reported in (2001) 8 SCC 458, the Hon'ble Apex Court, refers to Hiten P. Dalal Vs. Bratindranath Banerjee and holds, on the factual matrix, that bare denial of the liability in reply notice is not sufficient to shift the burden of proof on the complainant to prove that the cheque was issued for a debt or liability. In view of the law laid by the Hon'ble Apex Court, the presumption enshrined under section 139 of the N.I. Act is extendable to the existence of legally enforceable debt. The Hon'ble Supreme Court of India in, 15 Judgment C.C.185752017 Rangappa Vs. Mohan reported in AIR 2010 SC 1898 , further observed that once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the court in favour of the complainant. The presumption referred to in Section 139 of the NI Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption. What is required to be established by the accused in order to rebut the presumption is different from each case under the given circumstances. But the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. In other words, the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the court. The defence raised by the accused was that a blank cheque was lost by him, which was made use of by the complainant. Unless this barrier is crossed by the accused, the other defence raised by him whether the cheque was issued towards the hand loan or towards the amount spent by the complainant need not be considered. In para 18 of the 16 Judgment C.C.185752017 decision it is held that, Ordinarily in cheque bouncing cases, what the courts have to consider is whether the ingredients of the offence enumerated in Section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumptions contemplated by Section 139 of the Act. " Chapter XVII containing Sections 138 to 142 was introduced in the Act by Act 66 of 1988 with the object of inculcating faith in the efficacy of banking operations and giving credibility to negotiable instruments in business transactions. These provisions were intended to discourage people from not honouring their commitments by way of payment through cheques. In view of Section 139, it has to be presumed that a cheque is issued in discharge of any debt or other liability. The presumption can be rebutted by adducing evidence and the burden of proof is on the person who wants to rebut the presumption. A contrary view would render Section 138 of NI Act a dead letter and will provide a handle to persons trying to avoid payment under legal obligations undertaken by them through their own acts which in other words can be said to be taking advantage of one's own wrong..." The Hon'ble Apex court clearly laid down the ratio that, when the ingredients of section 138 of NI Act are complied with, 17 Judgment C.C.185752017 presumption shall be drawn in favour of the complainant. Thus the burden is upon the accused to rebut the statutory presumptions.
16. In this back drop of the rival contention, this court has given anxious consideration to the materials available on record. At the outset, it is pertinent to note that the accused has admitted the issuance of Ex.P.1 to 8 cheques and signatures found in Ex.P.1 to 8 cheques. The only contention of the accused that he has issued those cheques to the complainant for election fund. From the aforesaid admission it goes without saying that the accused has not disputed the cheques in question and signature found thereon. Therefore, when the drawer has admitted the issuance of cheques and signatures in the said cheques, then the presumption envisaged under section 118 read with section 139 of NI Act would operate in favour of the complainant. The said provisions lays down a special rule of evidence applicable to negotiable instruments. The presumption is one of law and thereunder the court shall presume that the instrument was endorsed for consideration. So also, in the absence of contrary evidence on behalf of the accused, the presumption under section 118 and 139 of the NI Act, goes in favour of the complainant. No doubt, said statutory presumptions are 18 Judgment C.C.185752017 rebuttable in nature. As discussed earlier, when the complainant has relied upon the statutory presumptions enshrined under section 118 read with section 139 of NI Act, it is for the accused to place the cogent and probable defence to rebut the presumptions raised in favour of the complainant. To put it other way, the burden lies upon the accused to prove that Ex.P.1 to 8 cheques were not issued to the complainant for discharge of any debt or liability, but the complainant has collect the same for election fund. It is worth to note that, Section 106 of Indian Evidence Act postulates that, the burden is on the accused to establish the fact which is especially within his special knowledge. This provision is exception to the General Rule that, the burden of proof is always on the prosecution to establish their case beyond all reasonable doubt. In that view of the matter, the burden is on the accused to prove that the cheques in question was not issued for discharge of any liability.
17. In order to discharge said burden the accused led defence evidence by examining himself as DW-1 and got exhibited himself as DW-1 and got exhibited three documents as Ex.D.1 to 3. Ex.D.1 is the internet copy of the candidate to profile of the complainant. Ex.D.2 is the the copy of the affidavit filed by the complainant 19 Judgment C.C.185752017 regarding her assets and liability while filing nomination for 2014 MLA election in Andra Pradesh and Ex.D.3 is the copy of the Board Evaluation report regarding the AARA infratel Ltd., The defence counsel cross examined PW-1 to elicit admissions from her mouth in support of the defence of the accused. During the chief examination the accused denied the borrowing of loan of Rs.2,50,00,000/- from the complainant and execution of DP notes. Ex.P.15 to 22 and MOU Ex.P.14 as well as letter Ex.P.13. He further deposed that for election fund he issued Ex.P.1 to 8. During the cross-examination the accused admitted that the complainant is financially well and complainant and her husband are carrying real estate business and they are having companies and other source of income. He further admitted that during the year 2016-17 he was residing the address shown in the complaint and was receiving communication in the said address. The accused has denied his signature in the vakalath filed by his counsel. He denied the suggestion that he has executed Ex.P.15 to 22 in favour of complainant. The accused also denied his signature found in the certificate produced by him under section 65 (B) of Indian Evidence Act. He admitted that Ex.P.1 to 8 belongs to him and he issued said cheques to complainant. He denied the 20 Judgment C.C.185752017 suggestion that, he has issued Ex.P.13 reply notice and execute Ex.P.14 Memorandum of understanding in favour of the complainant. Thereafter, the accused has failed to tender himself for further cross examination. Hence, his evidence was discarded vide order dated:20.02.2022. Therefore, the chief-examination of the accused is no value in the eye of law since, he has failed to tender himself for further cross-examination.
18. It is is the specific case of the complainant that her mother and accused are family friends, on such acquaintance the accused approached the complainant for hand loan of Rs.2,50,00,000/- start a business. Considering his request the complainant has paid Rs.2,50,00,000/- over a period of time from February 2016 to June 2016. After receipt of the said amount the accused has executed D.P. Notes to that effect and agreed to repay the amount with interest at the rate of 1% per month. On 30.12.2016 the accused come forwarded and voluntarily executed MOU in favour of the complainant by admitting the receipt of the amount of Rs.2,50,00,000/- and agreed to repay the same within 30.4.2017. Thereafter, towards repayment of the aforesaid loan amount the accused has issued eight post dated cheques for Rs.2,50,00,000/- on 21 Judgment C.C.185752017 presentation, the cheques were returned unpaid for funds insufficient in the drawers account. Therefore, the complainant got issued notice to the accused calling upon him to pay the cheque amount. Despite of the notice the accused has not paid the said amount and thereby he has committed offence under section 138 of NI Act.
19. The complainant in her affidavit and chief examination has reiterated complainant averment regarding lending of loan to the accused and issuance of Ex.P.1 to 8 cheques by the accused for repayment of said amount. To prove the alleged loan transaction apart from her oral testimony the complainant has produced Ex.P.15 to 22 Demand promissory notes and Ex.P.14 MOU alleged to have been executed by the accused. Ex.P.15 to 20 were executed for Rs.25,00,000/- each and Ex.P.21 & 22 were executed for Rs.50,00,000/- each. The total amount of the D.P. notes is Rs.2,50,00,000/-. In the Ex.P.14 MOU, it is stated that the accused has received Rs.2,50,00,000/- from the complainant and he will return the same by 30th April 2017. The accused denied the executing D.P. Notes as well as MOU. During the cross- examination the accused not only denied his signatures in Ex.P.14 to 22 Judgment C.C.185752017 22, but also denied his admitted signature in his vakalath and certificate filed under section 65(B) of Indian Evidence Act. This shows that, the accused was denied everything. This court has compared the signatures found in Ex.P.1 to 8, Ex.P.14 to 22 and vakalath as well as the certificate filed under section 65(B) of the Evidence Act by the accused. The signatures found in all these documents looks like similar one. Further more the accused has not produced any other documents which contained his admitted signatures to establish that the signatures found in Ex.P.14 to 22 were not belongs to him. This aspect shows that the accused in order to escape from the liability has denied every thing.
20. The accused has admitted issuance of cheques in question but he contended that he has issued the same for election funds. The documents produced by the accused itself shows that the complainant has contested election in the year 2014. If at all he has issued cheques in question in the year 2014, why he has kept quite without taking any action to take back the cheques or to give stop payment intimation to bank. The accused has not taken any legal action against the complainant for having custody of his cheques.
23 Judgment C.C.185752017 Failure to take appropriate action to take back the cheques or to give stop payment intimation to bank by the accused appears that he has voluntarily issued Ex.P.1 to 8 cheques for discharge of liability. During the cross examination of PW-1 nothing worth has been elicited to discharge the presumption envisaged under section 118 and 139 of NI Act. Mere denial is not sufficient to discharge the presumption under section 118 & 139 of NI Act and some thing more is required. Except self serving statement of the accused nothing is on record to say that the accused has issued Ex.P.1 to 8 cheques for election found.
21. During the cross-examination of PW-1 the accused has disputed the financial capacity of the complainant. But during his cross examination the accused unequivocally admitted that the complainant is financially well. The document produced by the accused that is affidavit filed by the complainant at the time of filing nomination for MLA election also disclose that the complainant was financially capable to lend Rs.2,50,00,000/- at the relevant point of time. Hence, I am of the opinion that the accused 24 Judgment C.C.185752017 has failed to rebut the presumption envisaged under section 118 & 139 of NI Act by raising probable defence.
22. From the discussion made above, it is clear that, the accused has neither taken probable defence nor taken steps to prove the same. The contention of the accused that, disputed cheque was not issued towards discharge of his liability is also not proved through cogent and acceptable evidence. To put it other way, accused has not taken and proved probable defence to rebut the presumption of law available in favour of the complainant, envisaged under section 118 read with section 139 of N.I. Act. Accordingly, the case of the complainant is acceptable. The Complainant has proved that, for discharge of liability accused has issued Ex.P1 to 8 cheques and he has intentionally not maintained sufficient amount in his account to honour the said cheque. Hence, this point No.1 under consideration is answered in the Affirmative.
23. POINT NO.2: In view of the reasons stated and discussed above, the complainant has proved the guilt of the accused punishable under section 138 of N.I. Act. Hon'ble Supreme Court of India in a decision reported in, (2015) 17 SCC 368, in a case of 25 Judgment C.C.185752017 H.Pukhraj Vs. D.Parasmal, observed that, having regard to the length of trial and date of issuance of the cheque, it is necessary to award reasonable interest on the cheque amount along with cost of litigation. Further the Hon'ble Apex Court in its recent decision in M/s. Meters & instrument Pvt Ltd. Vs. Kanchana Mehta reported in (2018)1 SCC-560 held at para 18 that "The object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged but is not debarred at later stage subject to appropriate compensation as may be found acceptable to the parties or the court. " Therefore, keeping in mind the time when the transaction has taken place and primary object of the provision, this court is of the opinion that, rather than imposing punitive sentence, if sentence of fine is imposed with a direction to compensate the complainant for its monitory loss, by awarding compensation U/Sec.357 of Cr.P.C, would meet the ends of justice. The amount covered under the disputed cheques is Rs.2,50,00,000/-. The date of cheques is 30.04.2017. By considering all these aspects, this court is of the opinion that, it is just and proper to imposed fine amount of Rs.2,55,10,000/-, which includes interest 26 Judgment C.C.185752017 and cost of litigation, out of which compensation of Rs.2,55,00,000/- has to be awarded to the complainant U/s 357 Cr.P.C. Accordingly, this court proceeds to pass the following;
ORDER Acting under section 255 (2) of Criminal Procedure Code, accused is here by convicted for the offence punishable under section 138 of Negotiable Instrument Act and accused is sentenced to pay fine of Rs.2,55,10,000/-(Rupees Two Crore Fifty Five Lakhs Ten Thousand only). In default thereof accused shall undergo simple imprisonment for the term of 6(Six) months.
Acting under section 357(1) (b) of code of criminal procedure, it is ordered that, Rs.2,55,00,000/- ( Rupees Two crore Fifty Five Lakhs only), therefrom shall be paid to the complainant as a compensation, remaining fine amount of Rs.10,000/-(Rupees Ten Thousand only) is defrayed to the state for the expenses incurred in the prosecution.
27 Judgment C.C.185752017 Office is directed to supply free copy of the judgment to the accused.
(Directly dictated to the Stenographer on computer, typed by her, corrected by me and then judgment pronounced in the open court on this the 12 th day of April 2022).
(MANJUNATHA M.S.) XVIII A.C.M.M.,BANGALORE ANNEXURE I. List of witnesses on behalf of complainant:
P.W.1: Anita Sakuru II. List of documents on behalf of complainant:
Ex.P-1 to 8 : Eight Original Cheques.
Ex.P-9 : Bank memos.
Ex.P-10 : Legal notice.
Ex.P-11 : Postal Receipts .
Ex.P-12 : Postal acknowledgment
Ex.P-13 : Reply Notice
Ex.P-14 : Agreement paper
Ex.P-15 to 22 : On Demand Promissory Notes
III. List of witnesses for the accused:
D.W.1:Narayana Rao Athuri.
IV. List of documents for accused:
Ex.D-1 : Copy of Assets and Liabilities Election Affidavit
Ex.D-2 : Copy of Election Affidavit
Ex.D-3 : Board Evaluation.
(MANJUNATHA M.S.)
XVIII A.C.M.M.,BANGALORE
28 Judgment C.C.185752017