Bangalore District Court
Sri. Praveen Ramesh Gowdru vs Sri. Rudra Gowda S.H on 9 July, 2018
1 C.C.No.16374/16 J
THE COURT OF THE XVI ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE, BENGALURU CITY
Dated: This the 9th day of July, 2018
Present: Smt. Saraswathi.K.N, B.A.L., LL.M.,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.16374/16
Complainant : Sri. Praveen Ramesh Gowdru
@ G.R. Praveen,
S/o. Sri. G.B. Ramesh,
R/at :; No.29, 10th Cross,
Muninanjappa Layout,
Ramamurthy Nagar,
Bengaluru -16.
(Rep.by Sri. K.Suresh Reddy &
Ors., Advs.,)
- Vs -
Accused : Sri. Rudra Gowda S.H,
S/o. Shivana Gowda.R.H,
Permanent Address at : 134,
Tadasanahalli,
Shikaripura Taluk,
Shimoga District
And Also at:
No.221, 45thCross, 2nd Main,
8th Block,Jayanagar,
Near Sangam Circle,
Bengaluru.
(Rep. by Sri.A.N.Krishna, Adv.,)
Case instituted : 16.6.2016
2 C.C.No.16374/16 J
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is convicted
Date of order : 9.7.2018
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, the Accused has borrowed a sum of Rs.3 Lakhs from him by way of cash on 5.8.2014, agreeing to repay the same within interest at 2.5% p.m and in token thereof, he has executed on demand promissory note on 5.8.2014. However, the Accused has not paid the interest to him from the date of borrowing upto April 2016, for the reasons best known to him. Thereafter after his several requests and demands, towards the repayment of the loan that he had borrowed from him, the Accused has issued a cheque bearing No.422984 dated: 7.4.2016 for Rs.4.5 Lakhs drawn on the Axis Bank of the Basaveshwaranagar Branch, Bengaluru towards the principal and the interest. Upon presentation, the said cheque came to be returned dishonoured as "Insufficient Funds" vide Bank Endorsement dated:
8.4.2016.3 C.C.No.16374/16 J
3. The Complainant has submitted that, thereafter he caused a legal notice to the Accused through RPAD on 22.4.2016, calling upon him to pay the cheque amount to him within 15 days from the date of the receipt of the said legal notice. However the said legal notice returned with shara "Intimation Delivered, Door Locked and return with unserved" on 9.5.2016, while the notice sent to his Permanent address returned with shara "Person not in town, Returned to sender" on 24.5.2016. Inspite of it, the Accused has neither replied nor has he paid the cheque amount to him. Hence the present Complaint.
4. The Complainant submits that, the dishonour of the cheque by the Accused has been malafide, intentional and deliberate. Feeling aggrieved by the conduct of the Accused, he has filed the present complaint praying that he be summoned, tried and punished in accordance with Sec.138 of the Negotiable Instruments Act.
5. The Complainant has led his pre-summoning evidence and he has filed his affidavit-in-lieu of his sworn statement, in which, he has reiterated the complaint averments.
6. In support of his evidence, C.W.1 has produced and relied upon the documentary evidence as per Ex.C1 to C16 which is as follows:-
4 C.C.No.16374/16 JThe original cheque dated 7.4.2016 as per Ex.C1, the signature on the said cheque identified by C.W.1 as that of the Accused as per Ex.C1 (a), the two Bank Memos as per Ex.C.2 and C.3, the Original cheque dated: 9.2.2016 as per Ex.C.4, the signature on the said cheque identified by C.W.1 as that of the Accused as per Ex.C.4(a), the Pro-note and Consideration Receipt as per Ex.C.5, the signatures on the said document identified by C.W.1 as those of the Accused as per Ex.C5 (a) and C5(b) respectively, the office copy of the Legal Notice as per Ex.C6, the two Postal Receipts as per Ex.C.7 and C.8 respectively, the retuned Legal Notices as per Ex.C.9 and C.10 respectively, the two Postal Envelopes as per Ex.C.11 and C.12 respectively, The Postal Receipts as per Ex.C.13 & C.14 respectively and the Postal Acknowledgements as per Ex.C15 & C.16 respectively.
7. Prima-facie case has been made out against the Accused and he has been summoned vide the order of the same date.
8. The Accused has appeared before the court and he has been enlarged on bail and the substance of the accusation has been read over to him, to which, he has pleaded not guilty and has stated that he has his defence to make.
5 C.C.No.16374/16 J9. In Complainant has led his post-summoning evidence, by examining him as P.W.1 and he has filed his affidavit, in which, he has reiterated the complaint averments.
10. In support of his case, P.W.1 has relied upon the additional documentary evidence which is as follows:-
1) The Statement of Accounts as per Ex.P.17 of his Bank Account;
2) His I.T.Returns for the Assessment Year 2015-16 as per Ex.P.18;
3) The e-mail dated: 20.9.2016 as per Sec. 65(B) of the Evidence Act as per Ex.P.19;
4) The Certificate under Sec.65 B of the Evidence Act as per Ex.P.20.
P.W.1 has been extensively cross-examined by the learned Defence Counsel.
11. The statement of the Accused u/Sec.313 of Cr.P.C. is recorded. He has denied the incriminating evidence found against him and has chosen to lead his defence evidence.
12. The Accused has examined him as on oath and during his evidence before the court, the gist of the defence is as follows:-
6 C.C.No.16374/16 JThat he is residing at No.29, 5th Main, Shakambari Nagar, J P Nagar first Phase, Bengaluru-78, since 1 ½ years from the date of his deposing in this case and that prior to it, he was residing at Nagarabhavi. However he could not say the said address of his residence.
2. D.W.1 has further deposed that he knows the Complainant since 2013 and that he came in contact with him through their common friend Raghavendra in connection with the registration of his Proprietary firm. Since 2013, the Complainant was looking after the registration of his firm as well as the tax matters pertaining to his firm. In the year 2014 at his request, the Complainant got registered a company by name Pixmatic Consulting Pvt., Ltd., with him and his friend Raghu as it's Directors. In the year 2015 the Complainant, represented to him that, he was holding rights in a Company by name EMCON Techno Solutions Pvt., Ltd., and assured him that, he would make him a Director in the said Company by removing the existing Directors from the said Company and accordingly, the Complainant and he became the Directors of the said company. The Complainant was handling the cash as well as the accounts pertaining to the said Company and for the 7 C.C.No.16374/16 J purpose of paying tax in respect of his proprietary concern and his private limited company, the Complainant used to collect his cheques and the signed documents from him.
3. According to D.W.1, in January 2016, he came to know that, the Complainant was misutilizing the funds relating to the former personally as well as the funds relating to his firm as well as his private limited company as well as that of the EMCON Techno Solutions Pvt. Ltd., In January 2016 and after he came to know about the misutilisation of the funds by the Complainant, he called him for a meeting so as to settle the issue between them amicably. But he did not attend to any of such meetings. Thereafter without attending for any settlement, the Complainant has filed the present false case against him.
4. It is further sworn by D.W.1 that, in the year 2015, without his knowledge, the Complainant has misused his digital signature and falsely shown him as the Director in a Company by name Suma Sahiti Infra Pvt., Ltd., along with his name and in July 2016, he came to know through their common friend Paniraj that, the Complainant has filed this case against him.8 C.C.No.16374/16 J
5. Further, according to D.W.1, he has never resided in his native place and that he would visit his native place only once in a year or once in two years and the address shown as his address in this case is a false address and as such, he has not received any notice said to have been got issued by the Complainant to me.
6.Further according to D.W.1, he has not availed any loan of Rs.3 Lakhs as claimed by the Complainant and as on the date of his alleged lending of the said loan, he had no necessity to avail any such loan from him. Except the signatures on the cheques in dispute, the rest of their contents are not in his handwritings.
7.Further according to D.W.1, the Complainant and he used to sit in the adjoining seats in the Company and the former always used to keep his signed cheques and signed pronotes in his table for his personal purposes and the same have now been misused by the Complainant. As the claim of the Complainant in this case is false and hence he has prayed for his acquittal.9 C.C.No.16374/16 J
13. In support of his oral evidence, DW.1 has produced and relied upon the following documentary evidence as per Ex.D.1 to D.8 which are as follows:-
i) The Income Tax Return Verification Forms concerning the Assessment Years 2012-13 to 2014-15 as per Ex.D.1 to D.3 respectively;
ii) The Certificate dated 1.9.2017 issued by the Axis Bank as per Ex.D.4;
iii) The Company Master Data details relating to M/s.Emcon Techno Solutions Pvt., Ltd., and Suma Sahithi Infra Pvt., Ltd., as per Ex.D.5 & D.6 respectively;
iv) The computer generated print out of the Aadhar Card as per Ex.D.7;
v) The Bank Statement relating to the Karnataka Bank Account as per Ex.D.8;
v) The relevant entry in the Bank statement as per Ex.D.8(a).
14. During the cross-examination of D.W.1, the following documents have been marked through him:-
i) The Photocopy of the Rental Agreement dated 6.2.2015 is as per Ex.S.1;
ii) The notarized copies of the Articles of Association and the memorandum Association regarding to the Emcon Techno Solutions Private Limited as per Ex.S.2 and S.3;
10 C.C.No.16374/16 Jiii) The Certificate issued by the Chartered Accountants as per Ex.S.4;
iv) The print out of the SMS's said to have been sent by the Accused to the Complainant as per Ex.S.5;
v) The photocopy of the DL of the Accused as per Ex.S6;
vi) The internet downloaded copy of the Electoral List as per Ex.S7 and the relevant portion in it as per Ex.S7(a).
DW.1 has been cross-examined extensively by the learned counsel or the Complainant.
15. The learned counsel for the Complainant has filed his written arguments in which he has prayed for the conviction of the Accused on the following grounds:-
i) The Complainant has filed his affidavit, in which, he has reiterated the complaint averments and he has relied upon the documentary evidence as per Ex.C.1 to C.20;
ii) The Complainant has denied in his cross-
examination the defence of the Accused that, he used to collect cheques from the Accused and that by misusing such cheques, he has filed this false case against him;
iii) The Accused has contradicted himself in his
defence version by claiming that, the
11 C.C.No.16374/16 J
Complainant and he used to sit in the adjacent seats in the company and the former used to keep his signed blank cheques and signed pronotes in his table for his personal purpose and that the same have now been misused by the latter;
iv) Though the Complainant has been cross examined extensively, nothing is elicited form him so as to disbelieve his case;
v) The Accused has not produced any
documentary evidence in support of his
defence version;
vi) The Accused has admitted in his cross-
examination that, he had given his home town address in the rental agreement and he has not produced any documentary evidence to show that, he is residing in the address shown in his affidavit and he has deposed that he could not examine his landlord in support of his defence version that, he is residing in different address, as has been claimed by him and not in the address to which the legal notice has been caused by the Complainant to his native address;
vii) Though the Accused has admitted in his cross-
examination that, he could produce the MOA and the Articles of Association relating to the 12 C.C.No.16374/16 J Company M/s.Emcon Techno Private Limited within a month and his bank statements to show that he has issued his personal cheques for the payment of tax and his I.T.Returns and the e-mail conversation between the Complainant and him prior to the filing of the present case, till he has deposed as a witness in this case, except having produced his Aadhar Card, he has conveniently withheld the said documents and as such an adverse inference is liable to be drawn against him in this regard;
viii) The Accused has taken a false defence that, there is no service of the legal notice on him;
ix) The Accused has categorically admitted that, the cheques in dispute belong to him and the pronote has been executed by him, except denying that, he has issued cheques and pronote towards the payment of tax to M/s. Emcon Techno Solutions Private Limited. However no prudent man could pay tax to the company through his individual cheque and eh the question of execution of pronote does not arise and this clearly goes to show that, it is a false defence raised by the Accused.
x) Though the Accused has denied the service of the legal notice on him, during his cross-
13 C.C.No.16374/16 Jexamination, he has clearly admitted that, though he is not residing in his home town and he claims to residing in a different address, he has not produced any documentary proof in support of the same;
xi) The Accused, being a graduate and doing
business and well aware of the bank
transactions and the value of the cheques and the pronotes cannot be believed to have kept such valuable documents in a manner that either the Complainant or any one elsewhere could have access to the same. Hence, such a defence raised by the Accused is without any basis and as such, his defence is a highly improbable one and accordingly he has prayed for the conviction of the Accused.
16. Per contra, the learned Defence Counsel has addressed his oral arguments, during the course of which, he has prayed for the acquittal of the Accused on the following grounds:-
i) Though the cheques in dispute are returned as "Funds Insufficient", the claim of the Complainant in this case is only in respect of the cheque at Ex.C.1;14 C.C.No.16374/16 J
ii) There is no service of the summons on the Accused and the complaint averments are vague and also inconsistent;
iii) There was business rivalry between the Accused and the Complainant;
iv) There is no pleading with regard to the acquaintance and the purpose of the alleged loan and the Complainant has admitted in his complaint that, there is no service of the legal notice on the Accused and intentionally, he has caused the legal notice to the native place address of the Accused;
v) There is contradiction between the pleadings in Para No.3 and 7 of the complaint about the date of the alleged lending;
vi) There was no cause of action as on 15.3.2016 as claimed by the Complainant and there was no service of the legal notice on the Accused as on 8.4.2016;
vii) The Complainant has secured the cheque at Ex.C.1 from the Accused during his business transactions with him and there is no pleading with regard to the cheque at Ex.C.4 and as such there is a serious doubt in the case of the Complainant which has not been clarified by him;15 C.C.No.16374/16 J
viii) There is no satisfactory explanation offered by the Complainant for the basis for him to come to the conclusion that, the interest on the allged loan of Rs.3 Lakhs would be Rs.1.5 Lakhs;
ix) The Complainant has suppressed the material facts;
x) The Pronote and the Consideration receipt at Ex.C.5 is a created document, since it does not contain the signature of the witness or the scribe of the said document and as such, no relevancy can be attached to the said document;
xi) The documents at Ex.C.7 and C.8 i.e., the Postal Receipts are dated: 25.4.16, whereas the legal notice at Ex.C.6 is dated: 22.4.2016;
xii) The Accused was not residing in either of the two addresses to which the legal notice is said to have been caused to him;
xiii) Though the Complainant has relied upon the documentary evidence at Ex.C.7, being the Statement of Accounts, the amount of Rs.1,20,000/= withdrawn by the Complainant is through his self cheque and though the Complainant claims that, he has lent the said amount of Rs.1,20,000/= to the Accused by way of cash on 5.8.2014, but thereafter there is 16 C.C.No.16374/16 J no sufficient balance in his account as per the entries at Ex.C.7;
xiv) PW.1 has failed to prove his financial capacity and even in his I.T. returns at Ex.P.18 at Para No.3, the opening balance is only Rs.1 Lakh as on 31.3.2015;
xv) Though as per Ex.P.18, a loan of Rs.3.5 Lakhs is shown to have been advanced to the Accused, the said document is a concocted document and the cash on hand is shown as only Rs.3,210/= and this is sufficient to come to the conclusion that, as on the date of the alleged lending of the loan amount by the Complainant to the Accused, the former did not have the sufficient funds either in his bank Accounts or as cash on hand;
xvi) Admittedly, there is no whisper about the loan of Rs.3 Lakhs in the e-mail at Ex.P.19 and as such, the said document also does not help the Complainant;
xvii) According to the Accused, his correct address is as per the one shown in Ex.S.1 and Ex.S2 shows the names of 3 persons, whereas in Ex.D5, the name of the Accused is shown subsequent to the name of the Complainant;17 C.C.No.16374/16 J
xviii) Ex.S.4 is a created document by the Complainant, since it is not certified by the Company Secretary;
xix) There is no conversation about the loan of Rs.3 Lakhs even in the e-mail at Ex.S.5. xx) The admissions elicited from the Complainant in his cross-examination are sufficient to hold that, there is no legally payable debt by the Accused in favour of the Complainant; xxi) The defence of the Accused is probabalized with the documentary evidence at Ex.D.1 to D.8 and the documents at Ex.D.1 to D.3 proves the financial status of the Accused and Ex.D5 and D6 prove the fact that, the Accused and the Complainant are the Directors of M/s.Emcon Techno Solutions Private Limited; xxii) When the Accused himself was running more than one company, there was no necessity for him to avail any hand loan from the Complainant and there is no substantive proof led by the Complainant in support of his case.
Hence on the grounds above discussed, he has prayed for the acquittal of the Accused.
17. In support of his arguments, the learned Defence Counsel has relied upon the following decisions:-
18 C.C.No.16374/16 Ji) In A.M. Govindegowda Vs., B.V. Ravi, reported in Laws (Kar) 2015 6353;
ii) In Brajgopal Singh Swarnkar Vs., Girish Raisen, reported in 2014(10) DCR 539;
iii) In Amzad Pasha Vs., H.N.Lakshmana., reported in 2010 (3) KCCR 1950;
iv) In Laxmandas Vs., Amar Rochwani, decided by the Hon'ble High Court of M.P in Cri.A.No.553 of 2004 decided on 5.9.2006;
v) In Vishnudas G Bhutada Vs., Vijaya Mahantesh, reported in AIR 2007 (NOC) 951 (KAR),
vi) In K. Subramani Vs., K.Damodara Naidu., reported in 2015 AIR SCW 64;
vii) In HDFC Bank Limited Vs., Amit Kumar Singh., reported in AIR 2010 (NOC) 407 (Del).
18. By way of his reply arguments, the learned Defence Counsel has argued that, the Complainant has withdrawn Rs.1,42,000/= after the issuance of the legal notice with regard to the cheque in dispute on 30.5.2016 and Ex.D8 (a) proves the transaction between the parties in M/s. Emcon Techno Solutions Private Limited., and as such the Accused deserves to be acquitted.
19. I have heard the arguments. I have also gone through the written arguments filed by the learned counsel for the 19 C.C.No.16374/16 J Complainant and the decisions relied upon by the learned Defence Counsel and I have also perused the record carefully.
20. Sec.138 of the Negotiable Instruments Act has been enacted to lend credibility to the financial transactions.
The main ingredients of the offence under Sec.138 of the Negotiable Instruments Act are:-
(i) Drawing up of a cheque by the Accused towards payment of an amount of money, for the discharge, in whole or in part, of any debt or any other liability;
(ii) Return of the cheque by the Bank as unpaid;
(iii) The drawer of the cheque fails to make the payment of the said amount of money within 15 days of the receipt of the notice under the proviso
(b) to Section 138.
The Explanation appended to the Section provides that, the "debt or other liability" for the purpose of this Section means a legally enforceable debt or other liability.
21. Apart from this, Sec.139 of the Negotiable Instruments Act lays down a presumption in favour of the holder of cheque in the following terms:-
"It shall be presumed, unless the contrary is proved, that:-20 C.C.No.16374/16 J
The holder of a cheque received the cheque, of the nature referred to in Sec. 138, for the discharge, in whole or in part, of any debt or other liability".
22. Also, Sec.118 of the Negotiable Instruments Act states, "Until the contrary is proved, the following presumptions shall be made:-
(a) That every Negotiable Instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration."
23. Thus, the Act clearly lays down presumptions in favour of the Complainant with regard to the issuance of the cheque by the Accused towards the discharge of his liability in favour of the Complainant.
24. Under the scheme of the Act, the onus is upon the Accused to rebut the presumptions in favour of the Complainant by raising a probable defence.
25. It is a well settled position of law that, the defence of the Accused, if in the nature of a mere denial of the case of the Complainant will not be sufficient to hold it as a probable defence. The bare denial of the passing of consideration apparently does not appear to be any defence. Something 21 C.C.No.16374/16 J which is probable must be brought on record for getting the benefit of shifting the onus of proof to the Complainant.
26. It is also a well settled position of law that, once the cheque is proved to be relating to the Account of the Accused and he accepts and admits the signature on the said cheque, then the initial presumption as contemplated under Sec. 139 of the N.I.Act has to be raised by the courts in favour of the Complainant. The presumption referred to in Sec.139 of the N.I.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 given circumstance. 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. The defence raised by the Accused by way of rebuttal evidence must be probable and capable of being accepted by the court.
27. No doubt the initial mandatory statutory presumptions under Sec.118 and 139 of the N.I.Act are in favour of the Complainant. However they are rebuttable presumptions and the Accused is expected to rebut the presumptions by raising a probable defence.
22 C.C.No.16374/16 J28. Such being the legal position, it would be pertinent to refer to the defences raised by the Accused to rebut the presumptions in favour of the Complainant in this case.
29. Admittedly, there is no dispute with regard to the acquaintance between the parties as well as with regard to the fact that the cheques in dispute belong to the Accused with his signature on them. However, there is a serious dispute between them, with regard to the existence of the alleged liability of the Accused under the cheque in dispute in favour of the Complainant. In such circumstance, the onus of proving the existence of the alleged loan transaction in question beyond reasonable doubt is upon the Complainant. For this purpose, the Complainant is expected to prove his case beyond reasonable doubt. However, before raising the presumptions in favour of the Complainant as contemplated u/Sec.118 and 139 of the N.I Act, the Complainant is expected to discharge his initial burden of proving the existence of the transaction. Once he discharges the said initial burden, then the presumptions u/Sec.118 and 139 are required to be drawn in his favour. However, the said presumptions being rebuttable in nature, the Accused has the liberty to raise some probable defence/s so as to rebut the case of the Complainant.
23 C.C.No.16374/16 J30. In the back ground of this well established position of law, it is necessary to analyze the rival stands of the parties in this case.
31. It is pertinent to note that, the Complainant has relied upon the documentary evidence as per Ex.C.1 to C.17 and P.18 to P.20. The Accused has also led his evidence by examining him as D.W.1 and he has relied upon the documentary evidence as per Ex.D.1 to D.8 and during his cross-examination, the documentary evidence at Ex.S.1 to S.12 have been marked through him by confronting the said documents to him.
32. It could be seen that, first and foremost, the Accused has seriously raised the technical defence of the alleged non-service of the legal notice on him.
33. Therefore before considering the matter on merits, it is necessary to find out, as to, if the Complainant is able to establish the service of the legal notice on the Accused, since the said question touches the very maintainability of the complaint.
34. In this regard, it is seen that, as per the cause title of the complaint, there are two addresses of the Accused shown one is admittedly his native place address and the other shown as his Bengaluru address.
24 C.C.No.16374/16 J35. It could be seen that, as per the complaint averments, the legal notice sent to the Accused to his Bengaluru address is returned as "Intimation delivered, Door Locked and hence returned unserved", while the one sent to his permanent address is returned with shara "Person not in Town and hence returned".
36. On the basis of the same, the Accused has seriously disputed that, he has not been served with the legal notice either addressed to his native place or to his Bengaluru address, since according to him, though the address shown as his native address is his permanent address, none of his family members, including he is residing presently in the said address and as such there was no opportunity for him to receive the said legal notice.
37. Likewise, he has also claimed that, he was not residing in the address shown as his Bengaluru address as on the date of the legal notice i.e. on 22.4.2016. Likewise he has also claimed that, he is not at all residing in the address shown in the complaint as well as in the legal notice, which is the same as that shown on the Postal envelope at Ex.C.12.
38. In the back ground of this defence, the Accused has cross-examined the Complainant, wherein it is suggested to the latter that, the former (Accused) is residing in Shakambarinagar along with his family by doing his 25 C.C.No.16374/16 J business and that he is not at all residing in the address shown as his native place address in Ex.C.6. However, though, the Complainant has admitted the suggestion that, the Accused is residing at Shakambari Nagar, he has clarified that, his parents are residing in the address shown as his native place address.
39. Likewise, when it is suggested to P.W.1 that the second address shown in Ex.C.6 is the address of the father- in-law of the Accused and as such the legal notice sent to the three addresses of the Accused as per Ex.C.6, C9 adnC10 have not at all been served upon him, he has denied the same.
40. However it is well settled principle of law that, mere denial of the correctness of the address is not sufficient to hold that, the defence of the Accused about the alleged non- service of the legal notice is a tenable one. When the Accused claims that, as on the date of the issuance of the legal notice, he was residing in a different address and not in the address shown in the complaint or in the legal notice at the relevant point of time, the onus of proving the said fact is upon him. For this purpose, the mere denial on the part of the Accused of his address, to which, the legal notice is caused by the Complainant to him is not sufficient and in such circumstance, it is required on his part that there should be 26 C.C.No.16374/16 J some positive evidence, setting forth his allegedly correct address at the relevant point of time by him.
41. In this regard, it is pertinent to note that, in his chief-evidence, the Accused has claimed that, he is residing in Shakambari Nagar, J.P.Nagar first phase, Bengaluru, since 1 ½ years from the date of he deposing the evidence before court and prior to it, he was residing at Nagarbhavi. However, he has specifically claimed that, he could not say the said address of his Nagarbhavi residence.
42. That means according to the Accused, as on February 2016, he was residing at Nagarbhavi and the legal notice is of the month of April 2016. In such circumstance, an inference that that could be drawn from this claim of the Accused is that, according to him, as on the date of the issuance of the legal notice by the Complainant to him, the former was residing at Nagarbhavi and not in the address, which is shown in the complaint as well as in the legal notice and on the postal envelope at Ex.C.11. Therefore, in such circumstance, the onus of proving the said fact is upon him.
43. However, it is pertinent to note that, in support of his oral evidence, the Accused had not produced any documentary proof initially. Though subsequently he has produced the internet down loaded copy of his Aadhar card as per Ex.D.7 in order to prove that the address shown 27 C.C.No.16374/16 J therein is his correct address, it could be seen that, the Aadhar card at Ex.D.7 has been generated on 8.5.2017 and the print out of the same is shown to have been down loaded by the Accused on 20.5.2017. This fact has been clearly elicited even from the Accused even in his cross-examination.
44. No doubt, the Accused has produced his Aadhar Card, since he was questioned, as to, if he could produce the documents to show that, he is residing in the address as shown by him in his affidavit.
45. However, taking into consideration the date of the legal notice which is 22.4.2016, the documentary evidence at Ex.D.7, being the internet down loaded copy of the Aadhar card of the Accused does not prove his defence that, as on the date of the issuance of the legal notice, he was residing in the said address.
46. It could be seen that, even in his cross-examination, it is elicited from him that, earlier, he was residing at Nagarbhavi, which was also a rented house and there was a rental agreement in respect of the said house. Accordingly the photocopy of the said rental agreement confronted to him and admitted by him came to be marked as Ex.S.1. This document goes to show that, it is dated: 6.12.2015 and the issue of tenancy are for a period of 11 months. However it is not the claim of the Accused that, after the expiry of the 28 C.C.No.16374/16 J period of tenancy as per Ex.S.1, he continued to reside in the said premises. Therefore this document also does not substantiate the defence of the Accused that, he was residing at Nagarbhavi address as on the issuance of the legal notice to him by the Complainant.
47. Further, it could be seen that, though the Accused has claimed in his further cross-examination that, he has the rental agreement in respect of his present address, which he could produce before this court, he has clearly admitted before the court that, the name of his present landlord is Srinivas Murthy, but he cannot examine him, since his landlord would not take the risk of appearing before the court. It could be seen that, though the Photocopy of the said Rental Agreement is part of record and it has not been marked as exhibit. Even if the said document is observed by this court, the said agreement of lease is dated:- 10.12.2016 and the period of lease as per the said agreement are for one year. However, the date of the commencement of the lease is only from 10.12.2016 and in such circumstance, even if the original of the said document was produced by the Accused, it could not have helped him to probabalize his defence, since the date of the commencement of the lease is much after the date of the legal notice at Ex.C.6. Therefore, even the said document, though not marked as an exhibit does not in any manner help him.
29 C.C.No.16374/16 J48. It could be seen that, during the course of his subsequent cross-examination, the documentary proof i.e., the notarized copy of his D.L as per Ex.S.6 and the internet down loaded copy of the Electoral list pertaining to his native place address are confronted to the Accused and as they were admitted by him, they have been marked as Ex.S.6 and S.7 respectively.
49. In this regard, during the course of his cross- examination, it is elicited from the Accused that, the address shown in Ex.S.6 i.e., his D.L is the same as that of his native place address and that, he had applied for his D.L in the year 2013 and that his address in the D.L is the same as on this date and he has also admitted the suggestion that, as per the internet down loaded electoral list, his name still continues to exist in the electoral list of Tadasanahalli of Shikaripura Taluk, Shimoga District.
50. Thus, these admissions are sufficient to come to the conclusion that, though the Accused has continued to use his native place address in almost all his correspondences and his documents, only in respect of the legal notice, he has come up with a claim that, neither he nor his parents are residing in his native place address as on the date of the issuance of the legal notice.
30 C.C.No.16374/16 J51. Therefore the admissions elicited from him to the effect that, his D.L still continues to be in the same address and that his name in the electoral list also continues to be in the same address are sufficient to hold that, though there was possibility for the Accused to have received the legal notice, intentionally, he has failed to receive the same, so as to take up a false defence that, there is no service of the legal notice on him as such this technical defence is not available to him.
52. Even otherwise in this regard, I rely upon the following decision of the Hon'ble Apex Court:-
In CC Alavi Haji Vs., Palapetty Muhammed and ano., reported in 2007 AIR SCW 3578.
"The Accused is permitted to deposit the cheque amount within 15 days from the date of his appearance before the court, even if his defence is that he was not served with the legal notice".
53. Hence, I have no hesitation to hold that, for the reasons discussed above the Accused has miserably failed to probabalize his technical defence of the alleged non-service of the legal notice.
54. Now coming to the case on merits, though the Complainant and the Accused have led elaborate oral and 31 C.C.No.16374/16 J documentary evidence in support of their respective contentions and each of them has been extensively cross- examined by the counsels representing the other side, the gist of the evidence of the Accused that is evident is that, his signed blank cheques and pronotes, which were being kept by him in the table drawer in his office, to which, the Complainant had the access, has misused them, because of the differences of opinion between them in respect of the affairs of the company affairs of M/s. Emcon Techno Solutions Pvt., Ltd.,
55. Thus according to the Accused, the motive behind the Complainant to have initiated the present proceedings is only because of the differences between them in respect of the affairs of the aforesaid company.
56. However in the light of this defence, it could be seen that, as per complaint averments, there is no pleading with regard to the fact that, the Accused and the Complainant, being the Directors of the aforesaid company were sharing the business transactions in each other's businesses as per the one, which is elicited during the course of their cross- examination by the respective counsels.
57. However, it is pertinent to note that, for the first time, in his cross-examination, it is elicited from the Complainant that, he and the Accused are the Directors of 32 C.C.No.16374/16 J M/s.Emcon Techno Solutions Private Limited and though the Complainant had initially denied that both of them together had started a private company, subsequently he has voluntarily deposed that, the Accused is only an additional Director of the aforesaid company. P.W.1 has further admitted the suggestion that the said company is still in existence as on this day. During course of his further cross- examination, the Complainant has denied the suggestion that, during July 2014, there arose differences of opinion between him and the Accused, in respect of the aforesaid M/s.Emcon Techno Solutions Private Limited Company and the other businesses and that during course of their mutual business, he used to collect the cheques from the Accused and by misusing said cheques, he has filed this false case against him.
58. Likewise, he has also denied the suggestion that, during the course of their respective businesses, he has collected Lakhs of rupees from the Accused for the purpose of their business.
59. Now when the Complainant has claimed that the Accused is only an Additional Director of M/s. Emcon Techno Solutions Private Limited and not a Full Time Director, the onus of proving the said fact was upon the Complainant. Though the Accused, claimed himself to be a Director of M/s. Emcon Techno Solutions Private Limited, 33 C.C.No.16374/16 J during his cross-examination, the notarized copies of the form No.1, being the Certificate of Incorporation of M/s. Emcon Techno Solutions Private Limited., been confronted to him and the same, being admitted by him came to be marked as Ex.S.2.
60. This document at Ex.S2 goes to show that as on the date of the incorporation of the said company, the three First Directors were Mr.Suresh Babu Sharoon Suhasini, Mr. Phaniraj Shanbogvasudeva Rao and Mr.Dodda Revanna Doddaiah and except them, as on the date of the incorporation of the said company i.e., as on 3.2.2014, neither the Complainant nor the Accused was it's Director.
61. Likewise, Ex.S.3, being the notarized copy of the Memorandum of Association of the aforesaid company and came to be marked through the Accused in his cross- examination, which also discloses that, it is only the aforesaid three persons, who were the first directors of the said company.
62. Similarly, the document at Ex.S.4, being the Certificate issued by the Chartered Accountant of the aforesaid company, goes to show that the aforesaid 3 persons were the first Directors of the said company as on 18.2.2014.
34 C.C.No.16374/16 J63. However, as rightly pointed out by the Complainant in his cross-examination, during when he has claimed that, the Accused is only an Additional Director for the aforesaid company and the same is proved through the document relied upon by the Accused himself as per Ex.P.5, which shows the name of the Accused and the Complainant as the Additional Directors of the aforesaid company appointed on 19.1.2015.
64. Therefore when this document is considered by this court, it clearly corroborates the claim of the Complainant that, the Accused and he are only the Additional Directors of the said company and that the said company is still in existence as on this date. In such circumstance, the defence of the Accused that there arose difference of opinion between him and the Complainant in respect of the affairs of the aforesaid company cannot be believed by this court, since they were not the whole and sole Directors of the company and on the contrary, there are three Directors, who have admittedly held shares in the said company.
65. Even otherwise, except the bald allegation made by the Accused that, there arose differences of opinion between him and the Complainant in respect of the affairs of the aforesaid company and the other business, there is no reliable and cogent proof in support of such allegation by him and as such it goes to show that the same is a bald defence.
35 C.C.No.16374/16 J66. Further, it is also elicited from the Complainant in his cross-examination with regard to the Accused and he, being the Directors of the Company by name Suma Sahithi Infra Pvt., Ltd., Though interestingly the Complainant has denied that he and the Accused are also the Directors of the aforesaid company and that, they were doing the business in the said company, the same has been proved to be false by the Accused with the documentary evidence at Ex.D.6, which goes to show that, he and the Complainant are the Directors of the said company and the Accused became the Director of the said company subsequent to the Complainant i.e., on 6.8.2015.
67. In this regard, it is interesting to note that, when the Accused has been cross-examined with regard to he, being one of the Directors of Suma Sahithi Infra Private Limited Co., he has alleged in his chief evidence that, in the year 2015, without his knowledge, the Complainant has misused the digital signature of the former and falsely shown his name as the director in the said company. However, this defence version is not corroborated with any documentary proof, except the bald allegation.
68. Even otherwise, if the Accused really felt that his name had been shown in the aforesaid company by the Complainant fraudulently, then nothing prevented the former (Accused) from resigning to his post and to take appropriate 36 C.C.No.16374/16 J legal action against the Complainant in this regard. However, for the reasons best known to him, till date, the Accused has not taken any such legal action against the Complainant in this regard. This clearly leads to an adverse inference against the conduct of the Accused.
69. It is further pertinent to note that, it is not in dispute that, the Complainant has got registered a proprietary concern in the name of Chinmaya Man Power service and Tutorials and the SSI certificate of the said concern was got done by the Complainant and he has also got done the registration of the said firm in the labour department.
70. However, the defence of the Accused is that, for the purpose of paying the service tax on his behalf in respect of his business, it was the Complainant who had been paying the service tax and that he used to do the same by collecting the cheques from the former (Accused) while going for the registration of the company. The Complainant has given a clarification in this regard, by claiming that, the Accused used to make payment to him towards the registration by way of cash to him and he has denied that, for the said purposes, he used to collect the payments from the Accused both by way of cash as well as by way of cheques.
37 C.C.No.16374/16 J71. It is interesting to note that, though the Accused has reiterated the claim that, he used to make payments to the Complainant towards the payment of tax by way of cheques and for the said purpose, the Complainant used to collect his cheques and signed documents from him, in his cross-examination, the Accused has claimed that, for the said purpose, he used to issue his signed Promissory Notes and signed cheques to the Complainant for the purpose of paying tax on his behalf.
72. However, it is elicited from the Accused that, there was no question of his issuance of the promissory notes to the Complainant for the purpose of paying the tax.
73. It is interesting to note that, though the Accused has claimed in his cross-examination that, he used to keep the signed promissory notes for his personal and financial purposes and he could produce his bank statement to show that, he has issued his personal cheques to the Complainant for the payment of the tax and he has also declared about his payment of tax both personal as well as on behalf of the company in his I.T.Returns and he had no impediment to produce his I.T.Returns before this court, he has not produced any of these documents before this court.
74. Likewise, the Accused has also claimed in his cross- examination that, he has documents in respect of his claim 38 C.C.No.16374/16 J that, he has paid the fee to the Complainant towards the auditing services rendered by the latter, both to his company as well as to him personally. But interestingly the Accused has failed to produce any such documents before this court.
75. Moreover the Accused has claimed in his cross- examination that, his mobile number is 9071407889 and he might have used the mobile No.9902351950 and he has also admitted that, he has sent the SMS to the Complainant right from 2013 till 2016, he has not produced either the e-mail conversations between him and the Complainant, concerning the period prior to the filing of the present case till he deposing as a witness in this case. However, he has denied that as per Ex.C.5, he had sent SMS to the Complainant through his mobile phone. However, the denial of the SMS's as per Ex.S.5 by the Accused does not in any way help his defence, since earlier he has clearly admitted that, he had sent SMS's to the Complainant from 2013 till January 2016 and this admitted fact need not be proved by the Complainant.
76. It is interesting to note that, though the Accused has claimed throughout the proceeding that, the Complainant has audited the accounts of his company, as well as his personal accounts and he had been his auditor and he has relied upon his I.T.returns for the assessment year 2013-14, 2014-15 as per Ex.D.2 and D.3 respectively.
39 C.C.No.16374/16 JThe said documents go to show that, the Chartered Accountants, who have filed the said IT returns on behalf of the Accused are by name Ganesh and Venkat, Chartered Accountants and the documents as per Ex.D.2 and D.3 have been signed by one of the partner of the said firm by name Mr.Paramashivaiah M.C.
77. In this regard, when the Accused has been cross- examined by the learned counsel for the Complainant, he has also admitted that, the I.T. returns at Ex.D.2 and D3 bear the signature one Paramashivaiah M.C and that he has not produced any document before the court to show that, the Complainant has audited the accounts of his firm and that there is no document to show that, he has paid fee to the Complainant towards his alleged auditing of the accounts relating to his firm.
78. Though the Accused has claimed voluntarily that, he has made the payments to the Complainant in this regard by way of cash he has admitted the suggestion that, he has not declared about the same in his I.T Returns. Therefore the admission on the part of the Accused to produce the document/s to show that the Complainant has audited accounts of his firm and that, he has paid the fee to the Complainant for the said purpose, either through cash or through cheque/s clearly dismantles his entire defence theory and as such, at any stretch of imagination, it cannot 40 C.C.No.16374/16 J be believed by this court that the defence version pleaded by the Accused is a probable and believable one.
79. No doubt, the Accused has produced the document at Ex.D.4 in the form of a Certificate issued by the Axis Bank, certifying that, as per their Bank Accounts records, the cheque number serial starting with 422981 to 423000 was issuing on 9.12.2014.
80. However it is no where the claim of the Complainant that, the cheques in dispute were issued to him by the Complainant prior to 9.12.2014. Even otherwise, in his cross-examination, the Accused has admitted the suggestion that, he has not produced any supportive document in respect of the period to usage of the cheque leaves with cheque No. from 422981 to 423000 as shown in the certificate at Ex.D.4.
81. Moreover there is no bar either in law or in the Bank Practice and the Banking Rules that the cheques of the previous years should not be used in the subsequent years. As such the production of the documentary evidence at Ex.D.4 does not in any manner support the defence of the Accused.
41 C.C.No.16374/16 J82. Therefore, it is clear that except the self-serving testimony of the Accused, he has not successfully rebutted the case of the Complainant through any probable defence.
83. No doubt, during the cross-examination of the Complainant, his source of funds, so as to have lent the loan amount to the Accused has been seriously questioned by the learned Defence Counsel.
84. It is pertinent to note that, though the Accused has claimed in the cross-examination of the Complainant that, he used to make the payments to the Complainant, both by way of cash as well as through cheques, the Accused has failed to produce his Bank statement or Bank Pass book to show that, he used to make payments to the Complainant at least through cheques as claimed by him.
85. No doubt, there is a contradictory and suspicious circumstance in the case of the Complainant, wherein he claims that, on 5.8.2014, he had collected two cheques and the promissory note from the Accused, which is contrary to his pleading, wherein he claims that, as on the date of his lending of the loan to the Accused, the Accused had issued only an On Demand Promissory note to him and the cheque in dispute as per the complaint averments was issued by the Accused only after April 2016.
42 C.C.No.16374/16 J86. Interestingly there is no exact date of the issuance of the cheque in dispute pleaded in the complaint. Likewise there is also contradiction in the evidence of the Complainant, wherein he claims that, the Accused has issued him two cheques and not one cheque on 5.8.2014.
87. It is pertinent to note that, apart from the cheque at Ex.C.1, the Complainant has also produced the cheque at Ex.C.4 which is dated: 9.2.2016 for as sum of Rs.3.5 Lakhs and the Complainant has not made any claim in the present case in respect of the said cheque.
88.However, in his cross-examination, the Complainant has clearly admitted that, his claim in the present case is only in respect of the cheque at Ex.C.1 for Rs.4.5 Lakhs.
89. Interestingly, the Accused has raised another defence by claiming in the cross-examination of the Complainant that, the cheques in question were not issued by him to the Complainant towards the discharge of any debt, but they were the security cheques for purpose of making payments towards the registration under KST, CST and the VAT.
90. Therefore, though there is a contradiction in the case of the Complainant with regard to the pleading pertaining to the cheque at Ex.C.4, the said contradiction is 43 C.C.No.16374/16 J not a significant, since the Accused has admitted that, he has issued not only the cheque at Ex.C1, but also the cheque at Ex.C.4, though for an entirely different purpose, than the one claimed by the Complainant in the present case.
91. No doubt, it is also elicited from the Complainant that, the witness column in Promissory Note at Ex.C.5 is blank and there is no name of the scribe mentioned on the said document. However, he has denied the suggestion that, the Accused has not executed the said document in his favour on 5.8.2014 that, he has created the said document.
92. But, it is pertinent to note that, if the Complainant really intended to cheat the Accused, he could have done so by filling up the promissory note at Ex.C.5 for the amount more than Rs.5 Lakhs, when the cheque at Ex.C.1 is for a sum of Rs.4.5 Lakhs.
93. Moreover the Complainant has clearly clarified with regard to the amount claimed under the cheque in dispute on the ground that, though the loan amount advanced by him to the Accused is only Rs.3 Lakhs, including the interest part, the amount claimed under cheque at Ex.C.1 is for a sum of Rs.4.5 Lakhs. No doubt, the Accused has no where admitted that he has filled up the contents of the cheque in dispute.
44 C.C.No.16374/16 J94. However, the fact that the Accused has come up with the total inconsistent dates with regard to the purpose for which the cheques in question were issued by him to the Complainant clearly leads to an inference that, he has no certainty about his defence in respect of the cheques in dispute.
95. As already discussed above, at once, the Accused claims that, he himself had issued cheques in dispute to the Complainant for the purpose of making payments towards the KST, CST and the VAT, while at the other place, he claims that he had kept his signed blank cheques in the table of his company and the Complainant, who was handling the cash as well as the accounts pertaining to both his companies as well as the Proprietary Concern i.e. Suma Sahithi Infra Pvt., Ltd., and he alleges that, the Complainant has misused such signed blank documents by getting the possession of the same without his knowledge.
96. Therefore, it is clear that, the entire defence of the Accused is based on the allegation made by him against the Complainant and has raised the inconsistent defences which is not sufficient to rebut the case of the Complainant.
97. Moreover, the Accused has clearly admitted in his cross-examination that, till date, he has not taken any legal action against the Complainant and that he has not issued 45 C.C.No.16374/16 J the stop payment instructions to his banker. Admittedly the Accused is an educated person and a business man, who has the knowledge of the worldly affairs and in such circumstance, cannot be believed that, he would have allowed the Complainant or anyone else to have access to his alleged signed blank documents, whether it be for registration purpose or for the payment of fee or tax etc., Therefore viewed from any angle the defence of the Accused is highly improbable and cannot be accepted and believed by this court at any stretch of imagination.
98. It may not be out of place to refer to the documentary evidence at Ex.C.17, in respect of which, the Complainant has been cross-examined by the learned Defence Counsel.
99. No doubt, it is elicited from the Complainant in his cross-examination that, as per Income Tax Rules in transaction of more than Rs.20,000/= is required to be done only through cheque and it is also elicited from him that, a sum of Rs.1,20,000/= has been withdrawn by him through a cheque as per the relevant entry at Ex.C.17 and that he has not given the said cheque for Rs.1,20,000/= bearing No.153775, where entry dated 4.8.2014 in Ex.C.17 to the Accused.
46 C.C.No.16374/16 J100. Likewise, when it is suggested to him that, there is no entry in his bank statement at Ex.C.17 showing that he has withdrawn Rs.3 Lakhs from his bank account and lent the same to the Accused, he has answered that, he has arranged the balance amount from out of the amount that was in his possession and he has also claimed that, as the Accused had insisted him to pay the amount to him through cash, he has made the cash payment to him.
101. Considering the acquaintance between the parties as well as the business relationship that, each of them shared with the other, merely because the transaction in question is claimed to be one of cash and not through DD or cheque, there cannot be any doubt in the case of the Complainant. Moreover, when the Complainant has clarified that at the instance of the Accused, he has paid amount to him by way of cash and that he could arrange the balance of Rs.1,80,000/= from his account that was in his possession, there is no denial of the same, by the Accused.
102. This clearly leads to an inference that, there is no serious dispute on the part of the Accused with regard to the source of funds with the Complainant as on the date of the transaction in question.
103. Therefore by appreciating the entire evidence on record, it can be safely concluded that, though the Accused 47 C.C.No.16374/16 J has availed a financial assistance of Rs.3 Lakhs from the Complainant and has issued the subject cheque at Ex.C.1 towards the payment of the same to him, he has made all possible efforts to disprove the case of the Complainant, both on merits as well as on technicalities. However, he has miserably in his attempt to do so and on the other hand the Complainant has successfully established his case beyond reasonable doubt - both through his oral as well as the documentary evidence. Hence, I have no hesitation to conclude that the Accused has failed to rebut the presumptions available in favour of the Complainant under Sec.118 and 139 of the N I Act. Accordingly, I proceed to pass the following:-
ORDER By exercising the power-conferred u/s 255(2) of Cr.P.C., the Accused is hereby convicted of the offence punishable u/s 138 of the Negotiable Instruments Act.
He is held liable to pay a fine of Rs.4,75,000/= (Rupees Four Lakhs and Seventy Five Thousand Only).
If the fine amount is so realized, Rs.4,65,000/= (Rupees Four Lakhs and Sixty Five 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.48 C.C.No.16374/16 J
In default of payment of such compensation, he shall undergo Simple Imprisonment for 6 (Six) Months.
His bail bond stands discharged.
Issue free copy of the Judgment to the Accused forthwith.
(Dictated to the Stenographer and transcribed and print out taken by her, verified, corrected and then pronounced by me in the open court on this the 9th day of July, 2018).
(SARASWATHI.K.N), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Sri. Praveen Ramesh Gowdru @ G.R. Praveen
2. List of documents exhibited on behalf of the Complainant:-
Ex.C-1 : Original Cheque;
Ex.C1(a) : Signature of the Accused;
Ex.C-2 & C-3 : Bank Memos;
Ex.C-4 : Original Cheque;
Ex.C4(a) : Signature of the Accused;
Ex.C5 : Pronote and Consideration Receipt;
Ex.C.5(a)&5(b) : Signatures of the Accused;
Ex.C 6 : Office Copy of the Legal Notice;
Ex.C.7 & C.8 : Postal Receipts;
Ex.C.9 & C.10 : Returned Legal Notice;
Ex.C.11& C.12 : Postal Envelopes;
Ex.C.13 &C.14 : Postal Receipts ;
Ex.C.15 &C.16 : Postal Acknowledgements;
Ex.C.17 : Statement of Accounts;
Ex.P.18 : I.T.Returns for the Assessment year
2015-16;
49 C.C.No.16374/16 J
Ex.P.19 : e-mail dated 20.9.2016;
Ex.P.20 : Certificate under Sec.65 B of the
Evidence Act.
Marked through D.W.1:-
Ex.S1 : The Photocopy of the Rental Agreement
dated 6.2.2015;
Ex.S2 and S3 : The notarized copies of the Articles of
Association and the memorandum
Association regarding to the Emcon
Techno Solutions Private Limited;
Ex.S4 : Certificate issued by the Chartered
Accountants;
Ex.S5 : The print out of the SMS's said to have
been sent by the Accused to the
Complainant;
Ex.S6 : The photocopy of the DL of the Accused;
Ex.S7 & 7(a) : The internet downloaded copy of the
Electoral List and the relevant portion in it.
3. List of witness/s examined on behalf of the Accused:-
D.W.1 : Sri. Rudra Gowda S.H.
4. List of documents exhibited on behalf of the Accused:-
Ex.D1 to D.3 : Income Tax Returns - V for the Assessment Years 2012-13 to 2014-15; Ex.D.4 : Certificate issued by the Axis Bank; Ex.D.5 & D.6 : Company Master Data Details; Ex.D.7 : Computer generated copy of the Aadhar Card of the Accused;
Ex.D.8 : Karnataka Bank Statement of Accounts; Ex.D.8(a) : Relevant entry in the Bank Statement;
(SARASWATHI.K.N), XVI ACMM, Bengaluru City.50 C.C.No.16374/16 J
9.7.2018 Judgment pronounced in the open court vide separate order.
ORDER By exercising the power-conferred u/s 255(2) of Cr.P.C., the Accused is hereby convicted of the offence punishable u/s 138 of the Negotiable Instruments Act.
He is held liable to pay a fine of Rs.4,75,000/= (Rupees Four Lakhs and Seventy Five Thousand Only).
If the fine amount is so realized, Rs.4,65,000/= (Rupees Four Lakhs and Sixty Five 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.
In default of payment of such compensation, he shall undergo Simple Imprisonment for 6 (Six) Months.
His bail bond stands discharged.
Issue free copy of the Judgment to the Accused forthwith.
XVI ACMM, B'luru.