Bangalore District Court
Sri.K.Srinivasa vs Sri.Srikanth on 7 February, 2017
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 7th day of February 2017
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.31703/2014
Complainant : Sri.K.Srinivasa,
S/o.K.B.Krishnappa,
Aged about 38 years,
R/at No.44, I Cross,
Desai Garden,
Vasanthapaura Road
Bengaluru-62.
(Rep. by K.H.Thimmegowda.,
Adv.,)
- Vs -
Accused : Sri.Srikanth,
Prop.Sri.Sai Industries,
No.18, Ground Floor,
Aishwarya Layout,
5th main,
I Cross, Kuvempunagar,
Doddakallasandra,
Bengaluru-62.
(Rep. by Sri.N.A.Mohan &
ano., Adv.,)
2 C.C. No.31703/2014 J
Case instituted : 17.10.2014
Offence complained : U/s 138 of N.I. Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is Convicted
Date of order : 7.2.2017
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 is a businessman and running fabrication business in the address given in the complaint and he was introduced to him by his common friend. As he and the Accused were residing in the same area, they became friends and the Accused who just started business in fabrication was often requesting help financially in developing his fabrication business. Accordingly he was helping the Accused as requested by him and the Accused used to repay the said amount from time to time.
3 C.C. No.31703/2014 J3. The Complainant has further submitted that, in the month of February 2014, the Accused requested him to pay a sum of Rs.10,00,000/= in order to expand his business and also to purchase some machineries, since the machineries that he was using were too old and on account of the same, he was unable to complete the work in time. The Accused had stated before him that, he had applied for a loan through his Banker and that they had assured him of getting loan and that the loan was held up for some technical reasons. Therefore believing the assurance given by his Banker, the Accused has placed orders for machineries and had also taken up the expansion work. The said machineries were ready for delivery and because of the delay in the loan he was finding it difficult to purchase the said machineries. Citing the same reason, the Accused requested him for financial help assuring him of repaying the same once the loan was released.
4. The Complainant has further submitted that, considering the request made by the Accused and considering the urgency pleaded by him, he lent a sum of Rs.10,00,000/= by way of cash on 10.2.2014, which the Accused assured to repay immediately after the loan was 4 C.C. No.31703/2014 J sanctioned to him by his Bank. However the Accused has failed to keep up his promise and went on giving one or the other reason. Ultimately upon his persistent request and demand, the Accused issued a cheque bearing No.179864 dated 10.9.2014 drawn on the Central Bank of India, Sarakki Layout Branch, Bengaluru, for Rs.10,00,000/= and requested him to present the same, assuring that, the same would be honoured on it's presentation. Believing the words of the Accused, when he presented the said cheque to his Banker, the same came to be returned dishonoured with an endorsement "Account Closed".
5. The Complainant has further submitted that, thereafter he got issued a legal notice to the Accused on 18.9.2014, by RPAD and Speed Post, which came to be duly served upon him. Inspite of it, the Accused has neither replied nor repaid the amount covered under the cheque.
6. 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 5 C.C. No.31703/2014 J the Accused be summoned, tried and punished in accordance with Sec.138 of the Negotiable Instruments Act.
7. The Pre-summoning evidence has been led by the Complainant on 27.11.2014. Prima-facie case has been made out against the Accused and he has been summoned vide order of the same date.
8. The Accused has appeared before the court on 27.3.2015. He has been enlarged on bail. The substance of the accusation has been read over to him on 27.5.2015, to which he has pleaded not guilty and has claimed the trial.
9. In his post-summoning evidence, the Complainant has examined himself as PW1 and has filed his affidavit, wherein he has reiterated the averments made in the complaint.
P.W.1 has also relied upon the following documentary evidence:-
Ex.P1 is the 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 6 C.C. No.31703/2014 J the Legal Notice as per Ex.P3, the Postal Receipts as per Ex.P4 & 5 respectively, the Postal Acknowledgement as per Ex.P6, the Complaint as per Ex.P7 and the signature on the complaint as per Ex.P7(a).
10. In support of the case of the Complainant, a witness by name Chander Singh is examined as PW2, who has corroborated the evidence of the Complainant.
11. The statement of the Accused under Sec.313 of Cr.P.C., has been recorded on 20.11.2015.
12. In Defence evidence, the Accused has examined himself on Oath under Sec.315 of Cr.P.C., as DW1.
In his evidence, DW1 has deposed that, he knows the Complainant as he is his customer to his fabrication factory and though the Complainant had undertaken to place orders with him, he has not done so and that, the Complainant is known to him since 2005. Further he has denied the entire case as alleged by the Complainant.
13. It is further deposed by DW1 that, he has closed his Bank account in the Central Bank of India in December 2006 and though the cheque at Ex.P1 relates 7 C.C. No.31703/2014 J to him, the signature on it does not belong to him. According to him, the Complainant used to visit his office in 2011-12 frequently and he does not know as to when the cheque at Ex.P1 came to be misplaced. According to him, though he sought an endorsement from his Bank with regard to the time, during which he closed his account, the same has not been issued to him on the ground that it was the year ending.
14. He has further deposed that, the legal notice got issued by the Complainant has not been served upon him and that he closed his account in the Central Bank, since the same was taken over by Karur Vysya Bank by providing to him the Housing Loan with OD facility and that he would produce the documents in respect of closing his account pertaining to the Central Bank.
15. It is further deposed by DW1 that, one Chandan was working in his Company and it is falsely claimed by the Complainant that, he was availing a loan of Rs.20,000/=, Rs.30,000/= from him since there was need of financial assistance to him so as to pay the salaries to his workers. According to him, there has been no financial transaction between the Complainant and 8 C.C. No.31703/2014 J himself and that he did not accept the offer of the Complainant seeking partnership in his fabrication business and likewise he also did not make any investment in the real estate business that was being done by the Complainant and therefore for the same reason, the Complainant might have filed this false case against him. He has further deposed that, he has closed his fabrication business in view of his ill-health in 2013 and that at that time, the Company was running well and presently he is earning a monthly salary of Rs.30,000/= from the Projector Operator work. Accordingly, prayed to dismiss the complaint.
16. During his cross-examination, DW1 has admitted that, the name of his wife is Nagalakshmi, but he has denied that the Postal Acknowledgment at Ex.P6 contains the signature of his wife. He has admitted that, the address found on Ex.P3 is his address. He has denied that, his wife has received the legal notice in respect of the cheque in question having been bounced.
17. He has denied the suggestion that, when he started his factory, he was not financially sound and therefore he came in contact with the Complainant 9 C.C. No.31703/2014 J through Chandan and used to avail loans from the Complainant and repay them and that even in the year 2014, as he had attempted to avail loan and till such availment, he was in need of funds, for which the Complainant advanced a loan of Rs.10,00,000/= to him. It is further denied by him that, even though the Complainant requested him to repay the said loan, instead of doing so, he issued the cheque in question to him. However he has admitted the suggestion that, the cheque in question belongs to him, but he has denied that, it contains his signature. Further he has pleaded ignorance has to how the cheque in question has gone to the possession of the Complainant. Likewise it is deposed by DW1, at the time of closing his account in the year 2006, he has returned the cheques which were in his possession to his Banker, but he does not remember about the numbers of cheques that he was returned to his Banker. Though he has stated before the court that, he has no impediment to produce documents to show the number of cheques that he has returned to his Banker as well as the documents to show that he has closed his account, he has not produced them before the court. It is further elicited from him that, even after the service of 10 C.C. No.31703/2014 J the summons, he has not lodged a police complaint alleging that, his cheque is misplaced and thereafter he has denied the entire case as suggested to him by the learned counsel for the Complainant.
18. The counsel for the Complainant has prayed for the conviction of the Accused on the ground that, the Accused has admitted that the cheque in dispute belongs to him, but has denied that it contains his signature. Though the Accused has denied the service of the legal notice, during his cross-examination, he has admitted that the address in Ex.P3 is his address. While cross- examining the Complainant, nothing has been elicited by the learned Defence Counsel and there is no denial of the lending of the amount by the Complainant to the Accused and the relationship between the parties is not disputed. There is no proof led by the Accused to substantiate his defence version. It is further argued that, the Accused has failed to explain as to how his cheque came to the possession of the Complainant and the wife of the Accused has not been examined so as to say that the signature on Ex.P6 is not her signature.
11 C.C. No.31703/2014 J19. It is further argued that, though the Accused has raised a defence that, his account was closed in the year 2006, there is no document produced by the Accused to show how many cheques were returned by him to his Bank. The Accused has admitted the profession of the Complainant as well as his income and the witness examined in support of the Complainant viz., PW2 has identified the signature of the Accused as well as that of the Complainant. He has also argued that, the Accused has failed to disprove the presumption under Sec.118 and 139 of the N.I.Act and no steps has been taken by the Accused to prove that Ex.P1(a) is not his signature. In view of the same, prayed for the conviction of the Accused.
20. The leaned counsel for the Accused has filed his written arguments, in which he has argued that, the Complainant has failed to establish his financial capacity before the court and though the Complainant claims that, he is an income tax assessee, he has not produced any documents before the Court. It is also argued that, the Complainant has claimed that, he has advanced the loan of Rs.10,00,000/= to the Accused at the request of his worker by name Chandan and it is unbelievable that 12 C.C. No.31703/2014 J such huge amount is paid only on the recommendation of a worker, without even obtaining any documents. It is also argued that, the alleged payment of the amount is not proved by the Complainant and there is no legally enforceable debt or liability under Sec.138 of the N.I.Act. It is further argued that, the non-production of the Bank details by the Accused cannot be taken adverse to the Accused, since penal liability is gathered only when the existence of the legally enforceable debt is proved.
21. It is further argued that, PW2 is a friend of the Complainant and therefore he is an interested witness, who has deposed without even having any knowledge with regard to the transactions. Accordingly, prayed for the acquittal of the Accused.
22. In support of his arguments the counsel for the Complainant has relied upon the following decisions:-
1. In NEPC Micon Ltd., and others, Vs., Magma Leasing Ltd., reported in AIR 1999 SC 1952,
2. In K.Bhaskaran Vs., V.Sankaran Vaidhyan Balan and ano., reported in AIR 1999 SCC 3762, 13 C.C. No.31703/2014 J
3. In T.Vasanthakuamar Vs., Vijayakumari, reported in (2015)8 SCC 378,
4. In Rangappa Vs., Mohan, reported in (2010)11 SCC 441,
5. In K.N.Beena Vs., Muniyappan and ano, reported in 2001 Crl.L.J.4745.
23. In support of his arguments, the learned Defence Counsel has also relied upon the following decisions:-
1. In Manjit Singh Vs., Kanta Verma, reported in DCR 2015 (3) 132,
2. In V.Makesan Vs., T.Dhanalakshmi, reported in DCR 2011(1) 627,
3. In Credential Leasing & Credits Ltd., Vs., Shruti Investments, reported in 2015(3) DCR
386.
24. I have considered the submissions and perused the record carefully.
25. Sec.138 of the Negotiable Instruments Act has been enacted to lend credibility to the financial transactions.
14 C.C. No.31703/2014 JThe main ingredients of the offence under Section 138 Negotiable Instruments Act are:-
(i) Drawing up of a cheque by the Accused towards the payment of the 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.
26. 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:-
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".15 C.C. No.31703/2014 J
27. 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;"
28. Thus, the Act clearly lays down the 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.
29. 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.
30. 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.
16 C.C. No.31703/2014 J31. Before discussing the merits of the case, it is necessary to note that the admitted fact is that the parties are known to each other for several years. Likewise it is also an admitted fact that the Complainant is doing real estate business, while the Accused is in Fabrication business.
32. In the background of these admitted facts, it is pertinent to note that the first defence raised by the Accused is with regard to the financial capacity of the Complainant.
Though the Accused has denied the loan transaction with the Complainant and the signature found on the cheque in dispute, as he has questioned the financial capacity of the Complainant, before giving a finding on the other issues it is necessary to consider this defence version first.
33. It is a well settled principle of law that, when the financial capacity of the Complainant is questioned by the Accused it becomes a relevant factor. In order to substantiate the same, the Complainant has deposed in his cross-examination that he does real estate business and land development business and that he does not 17 C.C. No.31703/2014 J have an office to do these business and that he advanced a loan of Rs.10 Lakhs to the Accused for the development and expansion of his fabrication business. According to P.W.1, the source of he arranging the said amount of the hard cash of Rs.10 lakhs to have lent to the Accused, P.W.1 has claimed that they had agreed to sell their joint family property on 21-03-2014 from which they had received the advance amount of Rs.14 Lakhs, from out of which he lent Rs.10 lakhs to the Accused by informing about the said fact to his family members. Though it is elicited from P.W.1 by the learned Defence Counsel that he has not produced any documentary evidence in respect of his claim that they had entered into an Agreement of Sale in respect of their joint family property, the same has not been seriously disputed by the Accused. In view of the same, the claim of the Complainant that he has arranged the amount of Rs.10 Lakhs from out of the advance amount under a Sale Agreement is not in dispute. No doubt it is elicited from P.W.1 that he does not have an annual income of about Rs.5 Lakhs from his real estate business, it is not of much significance in view of the fact that, it is not the case of the Complainant that he has arranged the said 18 C.C. No.31703/2014 J amount either from out of his earnings or from his savings, but it is from the advance sale consideration under an Agreement of sale.
34. Likewise it is claimed by P.W.1 that the Accused used to avail small loans of Rs.20,000/=, Rs.30,000/= etc., from him he has deposed that the Accused used to repay them. This claim of the Complainant is corroborated by the evidence of P.W.2, who is admittedly a worker who was working under the Accused in his fabrication business and he has deposed that the Accused was finding it difficult to pay salaries to his workers and in such situations, he used to avail financial assistance from the Complainant and thereafter he used to repay the said loans. It is claimed by P.W.2 that sometimes he used to collect such amounts from the Complainant and give it to the Accused and some times, the Complainant used to lend such amounts directly to the Accused.
35. Therefore it clearly goes to prove that the Complainant had been advancing such loans to the Accused in the usual course of the business of the latter. No doubt it is elicited from P.W.2 that he cannot say the 19 C.C. No.31703/2014 J total amount advanced by the Complainant to the Accused, but it is deposed by him that he has voluntarily left the company of the Accused. When the Accused has not alleged any ill-will or enemosity between himself and P.W.2, this court cannot doubt the credit worthiness of P.W.2 and there would be no reason for P.W.2 to depose in support of P.W.1 in the absence of any misunderstanding or ill-will between himself and the Accused. Moreover it P.W.2 was an interested witness, he could have definitely supported the Accused, who was his ex-employer instead of the Complainant, who is only his friend. Therefore the defence of the Accused with regard to the financial capacity of the Complainant holds no force and as such the same cannot be accepted by the court.
36. The next defence of the Accused is with regard to the cheque in dispute. It is not in dispute that the cheque in dispute relates to the account of the Accused, but there is dispute with regard to the signature on it. During the cross-examination of the Complainant, it is suggested to him by the learned Defence Counsel that he has put two dots below his signatures on the four pages of the complaint and that 20 C.C. No.31703/2014 J similar two dots is found even below the signature at Ex.P1(a) in the cheque at Ex.P1. It is also suggested to him that it is his practice to put such two dots wherever he signs. This has been denied by P.W.1. However with this defence, the Accused has come up with a defence that Ex.P1(a) is not his signature and in addition to it, it is suggested to P.W.1 in his cross-examination by the learned Defence Counsel that he has forged the signature of the Accused on the cheque in dispute. Even in his chief evidence, the Accused has reiterated the same defence that Ex.P1(a) is not his signature though he has admitted that Ex.P1 is his cheque.
37. No doubt, it is a well established principle of law that, whenever the Accused takes up a defence that the cheque in dispute does not belong to him or that it does not bear his signature, it is the burden on the part of the Complainant to establish that the cheque in dispute, in fact, relates to the account of the Accused and that it bears his signature. However when the Accused raises a plea of forgery, it is the burden cast upon him to prove the said plea. But interestingly the Accused has not taken any steps so as to prove the alleged plea of forgery. In such circumstance, it can be inferred that the Accused 21 C.C. No.31703/2014 J has taken a bald defence of forgery of his signature on the cheque in question by the Complainant. Now even for a moment, if it is assumed that the signature on the cheque in dispute is forged by the Complainant, then the next question that arises is as to what are the actions taken by the Accused against the Complainant about the alleged forgery of his signature. The amount claimed under the cheque is not a small amount, but it is a huge amount of Rs.10 Lakhs. In such circumstance, the Accused, being a businessman and an educated person having knowledge of the worldly affairs, cannot be expected to keep quiet, even after coming to know that his signature is forged. Therefore the conduct of the Accused in not having done so leads to an adverse inference against him. Moreover in the absence of steps taken by the Accused to get the expert opinion in respect of the cheque in dispute, the court is empowered to compare the signatures under Sec.73 of the Evidence Act. While doing so, it could be observed that, the admitted signatures of the Accused on his plea, statement under Sec.313 of the Cr.P.C., and in his rebuttal evidence before the court are identical with Ex.P1(a) except for the two dots which appear below the 22 C.C. No.31703/2014 J signature at Ex.P1(a). Therefore the defence of the Accused that Ex.P1(a) is not his signature cannot be accepted by the court.
38. The next defence of the Accused is that the account relating to Ex.P1 was closed in the year 2006 itself.
In this regard, during his cross-examination P.W.1 has deposed that the cheque in dispute, upon presentation came be returned as "Account Closed", but he does not remember the date of the Bank Endorsement and there is no details furnished by the Bank with regard to the date on which the Account is closed by the Bank. It is admitted by P.W.1 that there is no mention of IFSC Code on Ex.P1. For the same reason, it is the defence of the Accused that Ex.P1 is a old cheque. It is true that Ex.P1 does not contain the IFSC Code, but that by itself does not lead to an inference that an old cheque without IFSC Code could not have been used.
39. According to the Accused, he had his housing loan in the Central Bank, but he was not given the Over Draft Facility by the said bank for the expansion of his business and therefore his housing loan was taken over 23 C.C. No.31703/2014 J by the Karur Vysya Bank along with OD facility, due to which he closed his account in the Central Bank. Though the Accused has stated before the court that, he would produce documents pertaining to the same he has not produce any such documentary evidence so as to substantiate the same. Thus when it is the specific defence of the Accused that he closed his bank account for the reasons discussed above and that he could produce documents pertaining to the same, the onus of proving the same is upon him. But as already discussed, the Accused has failed to prove the same and as such an adverse inference is liable to be drawn against him.
40. Now the next defence of the Accused with regard to the issuance of the cheque in dispute is concerned, during the cross-examination of the Complainant, it is suggested to him that, as he did not join him to his partnership, out of ill-will, he has misused the cheque in dispute, which was collected by him from the Accused prior to 2006 and the present false case has been filed against him. Though this suggestion is denied by P.W.1, the suggestion goes to show that the issuance of the cheque in dispute in his favour is admitted by the Accused. Therefore the onus is now shifted upon the 24 C.C. No.31703/2014 J Accused to establish before the court, about the circumstance in which the cheque in dispute came be issued by him to the Complainant and what was the transaction in respect of which the cheque in dispute came to be issued by him in favour of the Complainant. However the Accused is silent with regard to this aspect.
41. Interestingly during his rebuttal evidence before the court, the Accused has claimed that the Complainant used to visit his office till 2011-12 and that he does not know as to when the cheque in dispute got misplaced. But strangely in his cross-examination, the Accused has claimed that he does not know as to how the cheque in dispute came to the possession the Complainant. Even otherwise, nothing prevented the Accused from taking appropriate legal action or to have caused a notice to the Complainant alleging that he has misused the cheque in dispute for wrongful gain. Likewise it is also elicited from the Accused that even after the receipt of the summons he has not lodged any police complaint alleging the cheque in dispute is lost. Thus these contradictory defences taken by the Accused with regard to the possession of the cheque in dispute in the hands of the Complainant clearly goes to prove that at one place the 25 C.C. No.31703/2014 J Accused has admitted the issuance of the cheque in dispute in favour of the Complainant, though according to him, it is prior to 2006, yet in another place, the Accused alleges that the cheque in dispute was lost/misplaced and in another place he claims that he does not know how it came to the possession of the Complainant. With these inconsistent defences, it clearly goes to show that the defence raised by the Accused in this regard is highly improbable and unacceptable. Having not done so, an adverse inference is liable to be drawn against the Accused even in this regard.
42. It is further pertinent to note that the Accused has stated in his cross-examination that at the time of closing his account in the year 2006, he had returned his cheques which were in his possession to the bank, but he does not remember the total number of cheque leaves that he had returned to his bank. However he has deposed that he has no impediment produce the bank documents in this regard. But interestingly no document is produced by the Accused to substantiate this defence version. Therefore this also gives rise to an adverse inference against the Accused and it clearly goes to show that the Accused has come up with a false defence so as 26 C.C. No.31703/2014 J to escape from his liability towards the Complainant under the cheque in dispute.
43. Lastly it is pertinent to note that the Accused has also taken up the technical defence of non-service of legal notice upon him.
44. However the said defence is taken for the first time only during his chief-evidence before the court. But during his cross-examination, the Accused has admitted the address mentioned on the legal notice at Ex.P3 and the name of his wife as "Nagalakshmi". However he has denied the legal notice has been served on his wife as per the postal acknowledgment at Ex.P6. When the Accused admits his address as found on Ex.P3 and admits that the name of his wife as "Nagalakshmi", the onus is shifted upon him to prove the non-service of the legal notice. Even otherwise, under Sec.27 of the General Clauses Act, there is a deemed service of legal notice in respect of a letter sent to the correct address of the addressee. Moreover the Accused has admitted the service of summons sent to him by this court. Admittedly the summons issued to the Accused by this court is to the same address as that given in the complaint as well 27 C.C. No.31703/2014 J as the legal notice. In such circumstance, it is the duty of the Accused to substantiate before the court as to what is his correct address, if the one given in the complaint and in the legal notice is incorrect. But interestingly no such address proof is furnished by the Accused. Therefore the Accused is not entitled even to the technical defence of the non-service of the legal notice upon him.
45. Lastly it should be noted that the case of the Complainant is corroborated by the evidence of a witness/P.W.2, who is admittedly known both to the Complainant as well as to the Accused. He has identified the signature at Ex.P1(a) as that of the Accused. The Accused has not disputed the fact that P.W.2 was working in his company till 2010. In such circumstance, it is possible to accept that P.W.2 would be in a position to identify the signature of the Accused and also about the transaction between the parties. The Accused has not claimed any difference of opinion with P.W.2 or any ill- will between them and it is not in dispute that P.W.2 has quit the job from the Company of the Accused voluntarily in the year 2010. In such circumstance, there might be no reason for P.W.2 to speak falsehood before the court. Further it is pertinent note that though P.W.2 has not 28 C.C. No.31703/2014 J been cross-examined, nothing is elicited from him so as to disbelieve his evidence.
46. Now from the appreciation of the entire evidence on record, it clearly goes to show that the Complainant has proved his case beyond reasonable doubt, while the Accused has failed to probablised his defence. In view of the aforesaid 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 the Negotiable Instruments Act.
He is sentenced to pay a fine of Rs.10,25,000/- (Rupees Ten lakhs Twenty Five Thousand only) within 30 days from today and in default of payment of fine, he shall undergo simple imprisonment for 1 (one) Year..
Out of the fine amount so collected Rs.10,15,000/-(Rupees Ten 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.29 C.C. No.31703/2014 J
The bail bond and surety bond of the Accused stands cancelled.
Issue free copy of Judgment to the Accused forthwith.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her, verified, corrected and then pronounced by me in the open Court on this the 7th day of February 2017).
(SARASWATHI.K.N), XVI Addl.CMM., Bengaluru City.
ANNEXURE
1. List of witnesses examined on behalf of the Complainant:-
PW.1 : K.Srinivasa; PW.2 : Chander Singh.
2. 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 & 5 : Postal receipts;
Ex.P-6 : Postal acknowledgement;
Ex.P-7 : Complaint.
Ex.P-7(a) : Signature on the complaint at Ex.P7.
30 C.C. No.31703/2014 J
3. List of witnesses examined on behalf of the Accused:-
DW-1 : Srikanth
4. List of documents exhibited on behalf of the Accused:-
- Nil -
(SARASWATHI.K.N), XVI ACMM, Bengaluru City.31 C.C. No.31703/2014 J
7.02.2017 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 the Negotiable Instruments Act.
He is sentenced to pay a
fine of Rs.10,25,000/- (Rupees
Ten lakhs Twenty Five
Thousand only) within 30 days
from today and in default of
payment of fine, he shall
undergo simple imprisonment for
1 (one) Year..
Out of the fine amount so
collected Rs.10,15,000/-(Rupees
Ten 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.
32 C.C. No.31703/2014 J
Issue free copy of Judgment
to the Accused forthwith.
XVI A.C.M.M., B'luru.