Bangalore District Court
Mr.A.Rajendra vs Smt.M.Sharadamma on 21 July, 2016
IN THE COURT OF XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 21st day of July 2016
Present: Smt. Saraswathi.K.N, B.A.L.,LL.M.,
XVI Addl.C.M.M., Bengaluru City.
JUDGEMENT U/S 355 OF Cr.P.C.,
Case No. : C.C. No.30179/2011
Complainant : Mr.A.Rajendra,
S/o.Mr.Aia Goundar,
R/at No.139, 72nd Cross,
Kumaraswamy Layout,
Bengaluru- 78.
(Rep. by Sri.S.Nagaraja., Adv.,)
- VS -
Accused : Smt.M.Sharadamma,
W/o.Mr.H.Siddarajau,
Major,
R/at.No.2, Police Quarters,
Hebbal,
Bengaluru-24.
(Rep. by Sri.B.C.Natesha.,
Adv.,)
Case instituted : 18.2.2011
Offence complained of : U/s 138 of N.I. Act
Plea of accused : Pleaded not guilty
Final Order : Accused is convicted
Date of order : 21.07.2016
2 C.C. No.30179/2011
JUDGMENT
The Complainant has filed this complaint against the accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. It is the case of the Complainant that, he is a flowerist having his shops at Jayanagar and other places and also having small time real estate business. He used to visit the office of the BDA for the verification of the documents and for enquiries. In the said course of his visit to the office of the Accused, the Accused become friendly with him and when he visited the office of the Accused in the month of February 2010, the Accused requested him to part with Rs.10,00,000/- on the ground that, he was in dire necessity of funds to discharge some of the hand loans which were taken on the guise of getting allotment of the site from the association and also to pay to the association in order to get the site allotted by the BDA Employees Association. As he had money at that time, which were given to him for the marriage decorations and the commission amount which he got for dealing the property, he paid a sum of Rs.6,00,000/- against the request of the Accused for Rs.10,00,000/- on 3 C.C. No.30179/2011 the ground that, the Accused was permanently employed in the office of the BDA and he also promised and assured that, he would repay the said amount in one lumpsum in the month of August 2010, together with interest at the rate of 24% p.a., However inspite of his repeated requests and demands, the Accused failed to repay the amount as per his promise and finally he issued a cheque bearing No.754159 dated 23.12.2010 for Rs.3,00,000/- drawn on the Canara Bank, BDA Complex Branch, Bengaluru, assuring him that, the said cheque will be honoured on its presentation. However when the said cheque was presented for encashment, it got dishonoured with a shara "Funds Insufficient". Therefore he got issued legal notice to the Accused through RPAD and UCP. However inspite of receipt of the legal notice, the Accused has failed to pay the same. Hence the present case.
3. After recording the sworn statement of the Complainant, the same has been registered as a criminal case, the summons has been issued to the accused, who has appeared through his counsel and has got enlarged on bail. The substance of the accusation has been read 4 C.C. No.30179/2011 over to him, he has pleaded not guilty and has claimed to be tried.
4. In order to prove his case, the Complainant has examined himself as PW-1 by relying upon the documentary evidence at Ex.P1 to P8.
5. It is seen that, inspite of given sufficient opportunities, PW1 has not been cross-examined by the learned defence counsel.
6. As the Accused remained continuously absent before the Court and inspite of repeated issuance of the process, she could not be secured, her statement under Sec.313 of Cr.P.C., has been dispensed with.
7. It is seen that, the Accused has also failed to lead any rebuttal evidence.
8. Heard the arguments of the counsel for the Complainant. Inspite of given sufficient opportunity, the counsel for the Accused has not addressed his arguments.
5 C.C. No.30179/20119. The following points arise for my consideration:-
1. Whether the Complainant has proved beyond reasonable doubt that the accused is guilty of the offence punishable under Sec.138 of the Negotiable Instruments Act?
2. If so, what Order or Sentence?
10. My findings to the above points are as under:-
Point No.1: In the Affirmative; Point No.2: As per the final order for the following:-
REASONS
11. POINT No.1:- The Complainant's case is that, he is a flowerist having his shops at Jayanagar and other places and also having small time real estate business. He used to visit the office of the BDA for the verification of the documents and for enquiries. In the said course of his visit to the office of the Accused, the Accused become friendly with him and when he visited the office of the Accused in the month of February 2010, the Accused requested him to part with Rs.10,00,000/- on the ground that, he was in dire necessity of funds to discharge some of the hand loans which were taken on the guise of getting allotment of the site from the association and also to pay to the association in order to get the site allotted by the BDA Employees Association. As he had money at 6 C.C. No.30179/2011 that time, which were given to him for the marriage decorations and the commission amount which he got for dealing the property, he paid a sum of Rs.6,00,000/- against the request of the Accused for Rs.10,00,000/- on the ground that, the Accused was permanently employed in the office of the BDA and he also promised and assured that, he would repay the said amount in one lumpsum in the month of August 2010, together with interest at the rate of 24% p.a., However inspite of his repeated requests and demands, the Accused failed to repay the amount as per his promise and finally he issued a cheque bearing No.754159 dated 23.12.2010 for Rs.3,00,000/- drawn on the Canara Bank, BDA Complex Branch, Bengaluru, assuring him that, the said cheque will be honoured on its presentation. However when the said cheque was presented for encashment, it got dishonoured with a shara "Funds Insufficient". Therefore he got issued legal notice to the Accused through RPAD and UCP. However inspite of receipt of the legal notice, the Accused has failed to pay the same.
7 C.C. No.30179/201112. In order to prove these allegations, the Complainant has examined himself as PW.1 & in his affidavit, he has reiterated the complaint averments.
In support of his oral evidence, P.W-1 has relied upon the following documentary evidence:-
Ex.P1 is the disputed cheque, in which, the signature is identified by P.W.1 as that of the Accused as per Ex.P1(a), the Bank memo as per Ex.P2, the office copy of the legal notice as per Ex.P3, the UCP receipt as per Ex.P4, the postal receipts are as per Ex.P5 & 6, the postal acknowledgement as per Ex.P7, & the complaint as per Ex.P8.
13. It is pertinent to note that, this oral as well as the documentary evidence of the Complainant has not been subjected to cross-examination by the defence counsel, even though sufficient opportunities have been given to him. It is a well settled principle of law that, if either of the parties to the proceedings, even after knowing the status of his case, does not choose either to prosecute or to defend the case, as the case may be, an adverse inference is liable to be drawn against such a party. Even in the present case, the entire case of the 8 C.C. No.30179/2011 Complainant has remained unchallenged and unrebutted. It is not the situation that, in the present case, the Accused is not aware of the accusations leveled against her by the Complainant, since this Court has recorded his plea. The defence of the Accused which is evident in her plea is one of denial. No doubt it is also a well settled principle of law that, the Accused need not enter witness box so as to defend her case, but it is sufficient if the Accused is able to establish her defence by relying upon the materials placed on record by the Complainant. But in the present case, it is pertinent to note that, the Accused has failed to make use of even the right of her cross-examination of PW1. As a result, the conduct of the Accused clearly goes to show that, her defence is one of bare denial and she has not taken any steps in order to defend herself. On the contrary, in the absence of any dispute or challenge to the unchallenged testimony of PW1, this Court has no hesitation to hold that the Complainant is entitled to the benefit of the presumptions available U/s.118 and 139 of the N.I. Act. Accordingly this Point deserves to be answered in the Affirmative.
9 C.C. No.30179/201114. POINT No.2:- In view of the above reasons and discussions, I proceed to pass the following: -
ORDER By exercising the power conferred u/s 265 of Cr.P.C., the accused is hereby convicted for the offence punishable u/s 138 of Negotiable Instruments Act.
She is sentenced to pay a fine of Rs.3,25,000/- (Rupees Three lakhs Twenty Five thousand only) within 30 days from today and in default of payment of fine, she shall undergo simple imprisonment for 6 (six) months.
Out of the fine amount so collected Rs.3,15,000/-(Rupees Three Lakhs Fifteen Thousand Only) is ordered to be paid to the Complainant as Compensation and the balance of Rs.10,000/- (Rupees ten thousand only) is ordered to be adjusted towards cost to the State exchequer..
The bail bond and surety bond of the accused stands cancelled.
Issue free copy of Judgment to the accused forthwith.10 C.C. No.30179/2011
(Dictated to the stenographer, transcript thereof is computerized and printout taken by her and then verified, and pronounced by me in open Court on this the 21st day of July 2016).
(SARASWATHI.K.N), XVI Addl.CMM., Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the Complainant:
PW1 : A. Rajendra List of documents exhibited on behalf of the Complainant: Ex.P-1 : Original Cheque; Ex.P-1(a) : Signature of the accused; Ex.P-2 : Bank memo; Ex.P-3 : Copy of the Legal Notice; Ex.P-4 : UCP receipt; Ex.P-5 & 6 : Postal receipts; Ex.P-7 : Postal acknowledgement; Ex.P-8 : Complaint.
List of witnesses examined on behalf of the accused:
-Nil-
List of documents exhibited on behalf of the accused:
-Nil-
(SARASWATHI.K.N), XVI ACMM, Bengaluru City.11 C.C. No.30179/2011 12 C.C. No.30179/2011
21.07.2016 Judgment pronounced in the open court vide separate order.
ORDER By exercising the power conferred u/s 265 of Cr.P.C., the accused is hereby convicted for the offence punishable u/s 138 of Negotiable Instruments Act.
She is sentenced to pay a fine of Rs.3,25,000/- (Rupees Three lakhs Twenty Five thousand only) within 30 days from today and in default of payment of fine, she shall undergo simple imprisonment for 6 (six) months.
Out of the fine amount so collected Rs.3,15,000/-(Rupees Three Lakhs Fifteen Thousand Only) is ordered to be paid to the Complainant as Compensation and the balance of Rs.10,000/-
(Rupees ten thousand only) is ordered to be adjusted towards cost to the State exchequer..
The bail bond and surety bond of the accused stands cancelled.
13 C.C. No.30179/2011Issue free copy of Judgment to the accused forthwith.
(SARASWATHI.K.N), XVI Addl.,Chief Metropolitan Magistrate, Bengaluru City.
14 C.C. No.30179/2011