Bangalore District Court
Smt. Dr. Shobha Divakar vs Dr. Shubhacharitha .K on 8 June, 2018
IN THE COURT OF THE XII ADDL. CHIEF METROPOLITAN
MAGISTRATE, AT BENGALURU
Dated this the 8th day of June 2018
Present: Sri. Rajkumar .S.Amminbhavi., B.Com., LLB (Spl)
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
C.C.No. 27270/2015
Complainant: Smt. Dr. Shobha Divakar
D/o. Sri. Divakar
Aged about 52 Years
R/at. No.346, "Maruthi Nilaya"
1st Floor, 1st D Cross, 6th Block
Banashankari III Stage
II Phase, Bengaluru-560 085.
Represented SPA Holder
Sri. Divakar
S/o. Rangaswamy
Retired Government official
Aged about 86 Years
R/at. No.346, "Maruthi Nilaya"
1st Floor, 1st D Cross, 6th Block
Banashankari III Stage
II Phase, Bengaluru-560 085.
(By K.Shridhara., Adv)
- Vs -
Accused: Dr. Shubhacharitha .K
W/o. Dharmavratha
Aged about 54 Years
R/at. No.440, Gunasheela
Fertility Centre
Vishwa Manava Double Road
A & B Block
2 CC No.27270/2015
Kuvempu Nagar
Mysore-570 023.
Also at :-
Dr. Shubhacharitha
Tapovana Enclave Apt
Vashista Block
404, Industrial Suburb Area
Opposite to Raja Rajeshwari
Temple, Mysore-570 008.
(By. N.Vageesh., Adv)
Offence complained of: U/s. 138 of the Negotiable
Instruments Act
Plea of the accused: Pleaded not guilty
Final Order: Accused is convicted
Date of order: 08.06.2018
******
JUDGMENT
This is a complaint filed under Sec.200 of Cr.PC against the accused for the offence punishable under Sec.138 of the Negotiable Instruments Act.
2. The facts of the complaint in brief are that, the complainant is a doctor by profession and is working as physician and the accused is also a doctor by profession and the accused and the complainant were and are close friends for more than 25 years and the accused is a Gynecologist and presently working as employee at Guna Sheela Clinic, Kuvempu Nagar, Mysore. On account of well 3 CC No.27270/2015 acquainted with the complainant, the accused has interesting to purchase a land at Mysore, Mahadevapura Main Road along with her other Doctor friends and offered the complainant to join to the project by purchasing an acre of land out of about 6 acres of land which the accused was intending to purchase and the accused in the month of July 2013, when the complainant visited at Mysore took her to a plot land situated adjacent to Annapoorneshwari Trust and told that, she is purchasing the land and accordingly, the complainant believing the words of the accused, she had paid an amount of Rs.24,05,000/- as part of the sale consideration to the accused in the following manner :-
(a) On 21.10.2013 transfer through online an amount of Rs.5,000/- to the bank account of the accused bearing SB account No.1717230000627 drawn Syndicate Bank, Kuvempunagar, Mysore,
(b) On 21.10.2013 transfer an amount of Rs.4,00,000/- through online to the bank account of the accused.
(c) On 08.11.2013 the complainant has issued cheque bearing No.429877 an amount of Rs.15,00,000/- drawn on Karnataka Bank and same has been credited to the bank account of the accused at Corporation Bank, J.P.Nagar, Bengaluru bearing SB account No>089200101002102.4 CC No.27270/2015
(d) On 17.03.2014 the accused received an amount of Rs.5,00,000/- by way of cash from the complainant.
Further, it is averred in the complaint that, the complainant paid total an amount of Rs.24,05,000/- to the accused on the inducement and instructions of the accused and the accused after receipt of the said amount, she had stated that, she would pay said amount to the land owners and to get the same registered in her name and subsequently, the accused after receipt of the amount of Rs.24,05,000/- she did not keep her promise and whenever the complainant enquired the accused about the registration of one acre of land in her favour and at that time, the accused has gave false excuses on one or other pretext and subsequently, on persistent request made by the complainant to the accused to show the documents with respect to purchase of the land and at that time, the accused has evaded to give justifiable reasons for the breach of promise committed by her and the complainant has came to know that, the accused has not even entered into any sort of MOU or an agreement of sale with the owners of the land situated adjacent to Annapoorneshwri Trust, Mahadevapura Road, Mysore and the accused has not made any payment to the land owners which she was received from the complainant and the accused has committed breach of promise and the accused has not disputed with respect to liability and same has been 5 CC No.27270/2015 conceded in her e-mails and legal notice issued by the accused herself and the father of the complainant, since the beginning was aware of the transaction of the complainant with the accused and father of the complainant used to approach the accused on behalf of his daughter regarding the finalization of sale of land in favour of the complainant by the accused and at that time, the accused herself came with an offer of payment of interest at the rate of 3% per month by sending mail to the complainant dated: 13.01.2015 till realization of the amount. Further, the complainant was constrained to visit to India as she was and is working Aborad and to meet the accused and the accused herself to discharge the liability after calculating interest in her own version voluntarily gave an fully filled undated cheque bearing No.006017 drawn on Indian Overseas Bank, Jayalakshmipuram, Mysore for a sum of Rs.32,50,500/- on 19.04.2015 in favour of the complainant and promised that, she would intimate the date of presentation of cheque to the complainant and the accused after issuing the cheque, once again sent another Email to the complainant contradicting the issuance of the cheque in favour of the complainant and subsequently, without any other alternative and efficacious remedy, the complainant has approach with the jurisdictional Mysore police and the said police on 23.06.2015 summoned the accused and informed her that, her acts attracts penal action, but considering the 6 CC No.27270/2015 status of the accused in the society and on humanitarian grounds, the police advised the accused to act in a legal manner or to face the legal consequences and accordingly, the accused has invited the complainant and her father to her house and wherein the accused in the presence of her son voluntarily filled up the date column of the cheque as 23.06.2015 and handed over the cheque to the complainant and promised that, the cheque would be duly honoured on its presentation and after issuance of the cheque in question, the accused has once again caused legal notice on some concocted and untenable grounds and the same has been suitably relied by the complainant and subsequently, as per the assurance made by the accused, the complainant has presented the said cheque for encashment through her banker i.e., M/s. Karnataka Bank, Banashankari Branch, Bengaluru, but it was dishonoured with an endorsement as "Payment Stopped by drawer" on 18.08.2015 and thereafter, the complainant has informed the said fact to the accused, but the accused did not responded the same. Hence, the complainant had got issued the legal notice on 09.09.2015 through her counsel by RPAD, calling upon her to repay the settled aforesaid cheque amount within 15 days from the date of receipt of this legal notice and it was duly served upon her. Despite of service of the legal notice, the accused neither repaid the said amount which was received from the complainant nor gave reply to the legal notice issued by the 7 CC No.27270/2015 complainant. Then, the complainant who is residing in Abroad and thereby, she has executed SPA in favour of her father as she was unable to prosecute the case in hand. Hence, the SPA holder of the complainant had constrained to file a complaint against the accused for the offence punishable under Section 138 of N.I. Act., which is well within time before the XVI ACMM Court at Bengaluru and based on the records available on record cognizance has been taken and registered it PCR.
3. After recording of the sworn statement of the complainant and complaint is registered in criminal case registered and after issuance of summons to the accused, pursuant to the summons the accused had appeared before this Court through her counsel and enlarged on bail. The substance of accusation was recorded and read over to the accused in her vernacular. She pleaded not guilty. Hence, claims for trail.
4. When the matter was posted for recording the evidence of the complainant at that stage, the present case is transferred to this Court under the vide Notification No.CRLB 12/2016 and CRLB 46/2016 on 21.03.2016 and thereby said case is tried before this Court. In order to prove the case of the complainant, the complainant got herself examined as PW.1 & got 11 documents marked as Ex.P.1 to Ex.P.11 and during her cross-examination, the 8 CC No.27270/2015 counsel for the accused has confronted the E-mail copies and same has been admitted by the PW-1 and same are marked as Ex.D1 to Ex.D4 and the PW-1 has been fully cross-examined and the statement of accused under Section 313 of Cr.P.C., was recorded and she denied the incriminating statement against her and the accused has stated that, she do not have oral evidence, but she has filed written statement and same has been received as her defence and accordingly, defence evidence is taken as no evidence and the mater was posted for arguments.
5. Heard arguments.
6. The following points arise for my determination;
1. Whether the complainant proves that the accused had issued cheque bearing No.006017, dated: 23.06.2015 for a sum of Rs.32,50,500/- drawn on Indian Overseas Bank, Jayalakshmipuram Branch, Bengaluru for discharge of the amount and when the said cheque presented for encashment, it was dishonoured with an endorsement "Payment Stopped by drawer" and after issuance of the legal notice she fails to repay the said amount and Thereby, the accused have committed offence punishable U/s. 138 N.I.Act?
2. What order ?
7. My answer to the above points are;
Point No.1 : In the affirmative
9 CC No.27270/2015
Point No.2 : As per final order for the
following;
REASONS
8. POINT NO.1: On perusal of the evidence of PW-1, she has reiterated as per the averments made in the complaint and she has got marked 11 documents namely, cheque which is marked as Ex.P1, the signature of the accused therein which is marked as Ex.P1(a), bank endorsement which is marked as Ex.P2, office copy of the legal notice which is marked as Ex.P3, two postal receipts which are marked as Ex.P4 and Ex.P5, two postal acknowledgment which are marked as Ex.P6 and Ex.P7, the copy of the reply issued by the complainant to the accused prior to filing of the present complaint which is marked as Ex.P8, two copies of the whats app message which are marked as Ex.P9 and Ex.P10, the legal notice issued by the accused to the complainant prior to filing of the present complaint which is marked as Ex.P11.
9. During the course of cross of PW-1, she has deposed that, she is originally citizenship having in India and now for the last 20 years she is residing at Brittan by obtaining domicile from the Brittan Government. She deposed that, she know the accused for the last 21 years. She deposed that, the accused herself and other doctors have intend to purchase of the agricultural land situated at Mysore and 10 CC No.27270/2015 after purchase of the said land converted into non- agricultural purpose and out of the said land, she was intend to purchase one acre of land and as per of the assurance made by the accused, she was intend to invest the money for the purpose of the purchase the one acre of land and she has also offered sale consideration amount worth of Rs.27,50,000/- for one acre land and out of the part the said amount, she has paid amount on various dates by way of E-mail bank account transferred to accused SB account an amount of Rs.5,000/-, Rs.4,00,000/-, Rs.15,00,000/- and an amount of Rs.5,00,000/- by way of cash, total paid to an extent of Rs.24,05,000/-. It is true that on 21.10.2013 the accused has send e-mail message and the copy of the e-mail message which is marked as Ex.D1. She denied the suggestion that the accused has furnished the documents pertain to the landed property. She deposed that, as per the assurance made by the accused, she has visited to the landed property situated which is adjacent to Annapoorneshwari Layout, Mysore in the month of July 2013 and subsequently, contacted with the accused through telephonic call and thereafter, the accused has stated that, since for visiting to the said land, the villagers will not tolerated for the purchase of the said land and thereby, she was not went to the said land and obtain any revenue documents pertain to the said land. She denied the suggestion that, when she was visited to the land two 11 CC No.27270/2015 times in the month of July 2013 and July 2014 and at that time, one Dadapeer was met with her, but she was met with Dadapeer in the month of April 2015. She do not know whether, one Dadapper was acting as an agent for alienation of the landed property to the accused and other purchasers. She do not know procedure about whether prior to purchase the said land, to obtain a prior permission from the competent authority. She do not know whether the accused has paid an amount of Rs.24,05,000/- which was received from the complainant and that amount was paid to the land owners or not, since believing the words of the accused, she has paid the said amount to the accused and even though, she has afford sufficient time and requested the accused to execute the sale deed or return the amount which has been paid by her, but she has not repaid the same and thereby, only she has lodged the complaint before the police station and pursuant to the complaint lodged by the complainant, the police have summoned the accused and in the police station the accused has agreed to repay an amount of Rs.24,05,000/- which was received from the complainant along with interest at the rate of 3% per month and accordingly, she has issued Ex.P1. It is true that, whenever she used to visit to the India and at that time she used to stay in the house of the accused and on account of their friendship. She do not know whether, MOU was entered into between the accused and land owners or not.
12 CC No.27270/2015She denied the suggestion that, she is having Brittan citizenship and thereby, she was not eligible for purchase of any property in India and to that effect, she was requested the accused for repaid the said amount. She deposed that, she was not obtained any permission from the Brittan Government prior to pay the amount in question to the accused and she was not obtained permission from the Indian Government for purchase the land, since she was not having Indian citizenship and further, she has deposed that, she has got transferred the said amount to the accused bank account on online and thereby, obtaining permission from the Brittan Government does not arise. She deposed that, she being the income tax assessee in Brittan Government and thereby, question of payment of the income tax in India, does not arise. It is true that, she has approached the police station and lodged the complaint against the accused by alleging that, since the accused was not paid the amount and she was gave life threat to her by sending e-mail and accordingly, she has approached the police and the police have called the accused and in the police station, the accused has voluntarily agreed that, she will repay the amount which was received from the complainant an amount of Rs.24,05,000/- together with interest at the rate of 3% per month and to that effect, she has issued cheque in question in the presence of her son and at that time, she has put date column on the Ex.P1. She denied the 13 CC No.27270/2015 suggestion that, the legal notice was not duly served upon the accused. She denied the suggestion that, she has forcibly taken the cheque in question from her and she has got filled the contents of Ex.P1 and filed false complaint against the accused.
10. During the course of recording the statement of accused under Section 313 of Cr.P.C., the accused has denied the incriminating statement against her and she has stated that, she was not having oral evidence, but she would file the written statements and accordingly, the defence evidence is taken as nill and the matter was posted for arguments.
11. During the course of recording her 313 statement of accused, in her written statement, the accused has filed her written statement, wherein contending that, she was never agreed in the police station that, she would repay the amount of Rs.24,05,000/- together with interest at the rate of 3% per month, since she could not purchase an agricultural land in Karnataka, on account of the bar contained in under Section 79 (a) and (b) of the Karnataka Land Reforms Act and thereby, the complainant started pressuring the accused to pay the amount with exorbitant interest for which the accused never agreed to pay interest at the rate of 3% upon the principle an amount of Rs.24,05,000/- and the said fact has been admitted by the 14 CC No.27270/2015 complainant in her e-mail which are marked as Ex.P9 and Ex.P10. Therefore, the complainant has not approached with the clean hand before this Court. The accused in his legal notice dated: 07.07.2015 as per the Ex.P11 has specifically stated that, the complainant is guilty of fraud, coercion and undue influence in obtaining the alleged cheque and there is no legal liability as far as Rs.32,50,500/- and the said notice was duly served upon her and the accused has not received the legal notice as pr the Ex.P3 to her correct address. She denied the suggestion that, the legal notice issued by the complainant which was duly served upon her. Therefore, at that time, prior to presentation of the cheque in question the accused has given instruction not to present the cheque in question for encashment, since she has given stop payment instruction to her banker. Therefore, she denied the claim of the complainant.
12. On perusal of the averments made in the complaint and evidence of the respective parties as well as coupled with the documentary evidence produced by the respective parties. There is no dispute that, both the complainant and accused are doctors by profession and thereby both of them were and are very well known to each other. There is no dispute that, the complainant originally citizen of India and now she has got obtained citizenship from the Brittan Government, since she was and is serving as doctor by 15 CC No.27270/2015 profession in Brittan. There is no dispute that, the accused along with other doctors who are residing in Mysore are intend to the purchase agricultural land situated at Mysore after converted into to non-agricultural residential purpose and for that, the accused has requested to the complainant to purchase the one acre of land for valuable sale consideration and accordingly, the complainant has believed the words of the accused and for the purpose of purchase the one acres of the land, she had got transferred an amount of Rs.24,05,000/- to the accused bank account through her bank account on-line as well as some amount by way of cash and same has been received by the accused for the purpose of the purchase the land. Further, the accused has failed to keep up her promise with respect to the purchase the land as per the assurance made to the complainant and thereafter, the complainant has requested and demanded the accused either to purchase the land or repay the invested amount and at that time, she has agreed to repay the received amount as part of the sale consideration as per the negotiation took place between themselves and the accused voluntarily agreed to pay the interest at the rate of 3% upon the principle an amount ofRs.24,05,000/- and accordingly, the accused after calculated the said amount and issued Ex.P1 un-dated cheque after filled all the contents in the cheque in question except date column and subsequently, as per the advise of the police she herself 16 CC No.27270/2015 before the police station, she has agreed to pay the received amount along with interest at the rate of 3% per month and accordingly, she has issued Ex.P1 cheque by putting date column and that fact has not been disputed by the accused, even on perusal of the Ex.P1 there is no ambiguity.
13. Further, after issuance of the Ex.P1 cheque as per the assurance made by the accused, the complainant has intent to present the said cheque for encashment, but in the meanwhile, after issuance of the fully-filled up the contents of Ex.P1, prior to filing of the present complaint, she herself got issued legal notice to the complainant as per the Ex.P11 on 07.07.2015 after issuance of the cheque in question and wherein the accused specifically contended that, denied the issuance of the cheque in question and she has gave stop payment instruction to her banker and further, the complainant has forcibly obtained the cheque in question from her and accordingly, the complainant has gave suitable reply notice as per the Ex.P8, wherein by specifically stated that, the accused in her house in the presence of her son after calculating the amount in question together with interest at the rate of 3% per month and by putting date in the cheque in question by her son and same has been issued for encashment and assured that, the said cheque in question would be honoured on its presentation and now she has gave false and frivolous legal 17 CC No.27270/2015 notice as per the Ex.P11 with an intention to defeat the claim of the complainant.
14. If really, she was not at all received the amount in question from the complainant and she has not at all issued the Ex.P1 for repayment of the amount in question to the complainant, she ought to have gave reply notice to the legal notice issued by the complaint, as per the Ex.P3, she ought to have challenge the cognizance taken by this Court, she ought to have lodged either police complaint or private complaint. Therefore, non-performing the aforesaid legal proceedings that itself, it is very much fatal to the alleged defence set-up by the accused during the course of cross of PW-1 and at the time of recording of statement under Section 313 of Cr.P.C.,
15. During the course of arguments, the counsel for the accused has argued that, the complainant is not Indian citizenship, she has obtained citizenship of Brittan and the complainant has complied the International Treaty Provisions, but looking the case in hand, it is private complaint relationship, receipt invest amount, the cheque in question admitted by the accused. Therefore, companying in International treaty provisions does not arise in the case in hand.
18 CC No.27270/201516. Further, prior to filing of the present complaint, the complainant has complied all the necessary ingredients of under Section 138 of N.I.Act., and accordingly, the legal notice issued by the complainant was duly served upon her and after receipt of the legal notice she has failed to gave reply notice and thereby, an adverse inference is to be drawn that, the accused has received the amount in question from the complainant and for repayment of the said amount, she has issued cheque in question to the complainant.
17. Further, the accused has taken specific defence that, cheque in question was dishoured with an endorsement that, "Payment stopped by the drawer" and to substantiate the same the accused ought to have produce the copy of the requisition given to her banker with respect to the payment stopped by drawer prior to presentation of the cheque in question, she ought to have examine her banker and she ought to have produce any documents that, at the time of giving stop payment instruction she was having sufficient funds in her bank account. Therefore, non- production of any documents about, she gave stop payment instruction and non production any documents with respect to that, at the time of issuing stop payment instruction, she was having sufficient funds in her bank account and non-examination her banker that itself, very much fatal to the alleged defence evidence taken by the 19 CC No.27270/2015 accused during the course of cross of PW-1 and in her statement under Section 313 of Cr.P.C., and in this context I am relying the citation reported in AIR 1998 SC 1057 - India Modi Cement Limited V/s. Kuchil Kumar Naidu. Therefore, it can be presumed that, the accused has gave stop payment instruction to her banker prior to presentation of the cheque in question with an intention to defeat the claim of the complainant and thereby, she cannot be escape from her liability, since she was not produced either oral or documentary evidence that, at the time of giving stop payment instruction to her banker she was having sufficient source of income.
18. During the course of arguments, the counsel for the complainant has relied the citation reported (i) 2015 AIR SCW 3040 (ii) 2016 (10) SCC 458 (iii) 2010 (11) SCC 441 (iv) 2007 (1) KCCR 24 are perused the same and are aptly applicable to the case in hand and so also unreported in Criminal Appeal No.728/2015 (arising out of SLP (Criminal) No.8091 of 2011) - Negotiable Instruments Acts- 1881 - Sections 138 and 139- Dishonour of cheque -stop- payment instruction - since cheque as well as signature has been accepted by accused respondent, presumption under Section 139 would operate- Burden was on accused to disprove cheque or existence of any legally recoverable debt or liability in which he failed - High Court was misplaced in putting burden of proof on complainant -
20 CC No.27270/2015Judgment of acquittal passed by High Court set aside- Respondent convicted and sentenced under Section 138 and unreported Criminal Appeal No.867 of 2016 (Arising Out of SLP (Crl) No.5410 of 2014 - Dishonour of a post- dated cheque- The cheque was for repayment of loan installment which had fallen due though such deposit of cheques towards repayment of installments was also described as "Security" in the loan agreement - The Court held that once issuance of a cheque and signature thereon are admitted, presumption of a legally enforceable debt in favour of the holder of the cheque arises. It is for the accused to rebut the said presumption, though the accused need not adduce his own evidence and can rely upon the material submitted by the complainant. However, mere statement of the accused may not be sufficient to rebut the presumption - Appeal stands dismissed. On other hand, during the course of arguments, the counsel for the accused has relied the citation reported in (i) 2017 (1) DCR 519 (ii) 2016 (1) DCR 629 (iii) 2017 (1) DCR 17
(iv) 2016 (i) DCR 147 are perused the same.
19. There is no dispute that, Ex.P1 cheque is belonging to her own bank account cheque and signature found on the Ex.P1(a) is her own signature. There is no any ambiguity on perusal of Ex.P1. It can be presumed that, the accused has issued the Ex.P1 to the complainant knowing fully well and thereafter, she gave stop payment instruction to her 21 CC No.27270/2015 banker with an intention to defeat the claim of the complainant.
20. It can be presumed that, no any ordinary prudent man will issue signed blank cheque to any other persons without having monetary transaction between themselves. Further, the accused being a doctor by profession and she is not a lay man and she know the cause and consequences with respect to issuance of cheque in question to any other persons under due process of law. Therefore, it can be presumed that, the complainant has proved her case by adducing cogent and corroborative evidence as per provision under Section 138 of N.I.Act., On the other hand, the accused has failed to defend her case by adducing cogent and corroborative evidence to rebut the claim of the complainant as per provision under Section 139 of N.I.Act., Hence, the probability of the preponderance is higher on the side of the complainant, rather than the accused.
21. Ordinarily offence under Section 138 of N.I.Act "mensrea" is not essential, under Section 138 of N.I.Act , is bring into operation rule of strict liability, whereas, "mensrea" is essential ingredients in criminal offences. Therefore, The complainant has proved her case against the accused, since offence under Section 138 of N.I.Act element of Mensrea has been excluded in general public 22 CC No.27270/2015 interest to curb the instances of dishonouring of cheques and to lend the credibility to the commercial transaction. Therefore, in this case also the accused knowing fully she was received amount in question from the complainant and for repayment of the amount in question she has issued the Ex.P1 to the complainant. Since the present complaint is summary trial and quasi-criminal in nature, it is like recovery proceedings and punishment is fine or in default of it simple imprisonment.
22. Looking to the conduct of the parties to the proceedings, both of them are doctors by profession and the complainant has filed the present complaint in the year 2015 already three years have elapsed and the present complainant is residing in Brittan and traveled from Brittan to India for the purpose to prosecute the case in hand and thereby, she was lost her valuable money for traveling expenses as well as valuable time for render her service as doctor by profession and even if the complainant has deposited an amount of Rs.24,05,000/- in the bank account as FD which was paid to the accused in the year 2013, then it would double the amount of the cheque amount of Rs.48,10,000/-. In the instant case, the complainant has invested said amount as her hard and earned money and even though there is no provision for awarding interest, but this Court is having ample power as provision under Section 27 of the General Clauses Act., for 23 CC No.27270/2015 awarding simple interest at the rate of 6% per annum upon the principle amount of cheque. Therefore, the interest an amount of cheque of Rs.5,85,090/- upon the principle an amount of Rs.32,50,500/- since from 2015 and awarding cost of litigation an amount of Rs.64,410/- since the trail faced by the complainant it is just and proper to meet the ends of justice. Hence, the accused is liable to pay total an amount of Rs.39,00,000/- to the complainant.
23. Hence, in the light of the above observation, the complainant has successfully proved that, the accused has committed offence punishable under Section 138 of N.I. Act with these reasons, I am the opinion that, the complainant successfully established before the Court, the accused has issued Ex.P1 to the complainant for the legally recoverably debt including the interest and cost of litigation. Therefore, I answer the point No.1 in the affirmative.
24. Point No.2 :- In view of my findings on Point No.1 in the affirmative, I proceed to pas the following...
ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
The accused shall pay a fine of
Rs.39,00,000/-. In default of payment of
24 CC No.27270/2015
said fine amount, the accused shall undergo simple imprisonment for Six Months.
Further, it is ordered that, out of the said fine amount of Rs.38,95,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and remaining an amount of Rs.5,000/- shall be remitted to the state as fine.
The bail bond and surety bond of the accused stands cancelled.
Free copy issued to the accused.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified, corrected and then pronounced by me in the open Court on this the 8th day of June 2018).
(Rajkumar.S.Amminbhavi) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the complainant:
PW.1 Shobha Divakar List of documents exhibited on behalf of the complainant:
Ex.P.1 Cheque
Ex.P.1(a) Signature of the accused
Ex.P.2 Bank endorsement
Ex.P.3 Office copy of the legal Notice
Ex.P.4 & 5 Two postal receipt
Ex.P.6 & 7 Two postal acknowledgement
25 CC No.27270/2015
Ex.P.8 Reply notice dated:06.08.2015
Ex.P.9 and 10 The copy of Whats app message Ex.P.11 Legal notice dated:07.07.2015 List of witnesses examined on behalf of the accused :
NIL List of documents exhibited on behalf of the accused :
Ex.D.1 to 4 Four E-mail copies XII Addl. Chief Metropolitan Magistrate, Bengaluru City.26 CC No.27270/2015
08.06.2018.
Complainant : KS Accused : NMS Judgment (Vide separate judgment pronounced in the open Court) ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
The accused shall pay a fine of
Rs.39,00,000/-. In default of payment of
said fine amount, the accused shall undergo simple imprisonment for Six Months.
Further, it is ordered that, out of the said fine amount of Rs.38,95,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and remaining an amount of Rs.5,000/- shall be remitted to the state as fine.
The bail bond and surety bond of the accused stands cancelled.
Free copy issued to the accused.
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
27 CC No.27270/2015 28 CC No.27270/2015Heard Inference 29 CC No.27270/2015