Bangalore District Court
M/S. Equitas Small Finance Bank vs Mr. Yashodhara on 12 January, 2022
Before the Court of Addl.Chief Metropolitan
Magistrate at Bangalore
(SCCH12)
Present: Shri .Mohamed Arifulla, B.Sc LL.B.,
.,
ACMM, Bangalore.
Dated this the 12th day of January, 2022
C.C.No.5006/2020
Complainant M/s. Equitas Small Finance Bank
Limited, (formerly known as
"EQUITAS FINANCE PVT.LTD.")
Having its Office at No.76, 2nd Floor,
Kasturin Complex, Mission Road,
Sampangiramnagar,
Bangalore560027.
Rept. By its Legal Officer
Mr.Darshana K.M. Age 30
Email ID
[email protected]
(By Smt.Kavitha H.N. Advocate)
V/s.
Accused Mr. Yashodhara
Father name not available
Age - major in age,
No.19, Lakshmisagar Post,
Devarapura, Sira Channanakunte,
Tumkur572137.
Pnone:9844008087.
(By Sri.B.Rajanna, Advocate)
1. Date of commencement of offence : 09092020
2. Name of the complainant : Equitas Small Finance
Bank Ltd.
(SCCH-12) 2 CC.No. 5006/2020
3. Date of recording of the evidence : 31122020
4. Date of closing of evidence : 27102021
5. Offence complained of : 138 of N.I. Act
6. Opinion of the Judge : accused found guilty
7. Complainant represented by : By K H N advocate
8. Accused defence by : By B R advocate
JUDGMENT
The complainant company has filed present private complaint under Section 200 of Cr.P.C against the Accused for the offence punishable U/s 138 of Negotiable Instruments Act.
2. The brief facts of the complaint are as under:
It is the case of the complainant that, the complainant bank was initially carrying banking business under the name of M/s.Equitas Finance Ltd. As per the license dated 30062016 issued by Reserve Bank of India operational w.e.f. 04092016, its name was changed to M/s.Equitas Small Finance Pvt. Ltd.,. It is presently carrying on the banking business as M/s.Equitas Small Finance Bank Ltd., In the course of its financial services, it introduced loan for the benefit of its customers on their applications upon their execution of the requisite security documents. The accused had approached the complainant for availing loan and the complainant had sanctioned loan to the accused vide Loan Account No.SEMYSRE0156978 and while availing the loan, the accused has also executed the loan (SCCH-12) 3 CC.No. 5006/2020 agreement and various loan forms agreeing to abide by the terms and conditions of the repayment. Further, the accused became defaulter towards repayment of loan amount. On demand made by the complainant, the accused issued a cheque bearing No.577023, dated 05022020 for Rs.2,46,659/ drawn on Canara Bank, Manangi in favour of complainant towards the repayment of loan.
3. It is further stated that, the complainant presented the above said cheque through their banker for collection but the said cheque was dishonored due to 'Drawers Signature Differs' on 17032020. The complainant approached the accused and orally informed the accused about the fact of dishonor of cheque. The complainant also got issued legal notice dated 01062020 calling upon the accused to make the payment covered in the cheque along with interest within 15 days from the date of receipt of legal notice and the notice was sent through RPAD and was served upon accused and refused on 22062020. In spite of service of legal notice to the accused, he has not complied the demand made by the complainant regarding the payment. These facts constrained the complainant to file the present complaint against the accused for the offence punishable under Section 138 of N.I.Act.
4. After filing of the complaint, sworn statement of the complainant was recorded and after hearing the arguments and on considering the materials on record a criminal case was (SCCH-12) 4 CC.No. 5006/2020 registered for the offence punishable under Section 138 of N.I. Act and summons has been issued to the accused for the said offence.
5. In pursuance of the process of the court, the accused appeared before this court through his counsel and got enlarged on bail. Thereafter, accusation was read over to the accused for the offence punishable under Section 138 of N.I.Act. The accused did not plead guilty and claimed to be tried.
6. The authorized person of complainant got examined himself as P.W.1 and got marked Ex.P.1 to 5, i.e., Ex.P.1 cheque, Signature of accused on Ex.P.1(a), Ex.P.2 Bank memo, Ex.P.3 Office copy of legal notice, Ex.P.4 Postal receipt, Ex.P.5 undelivered postal cover. Thereafter, sufficient opportunities have been given to the accused to keep present to record statement under section 313 of Cr.P.C but he remained absent. Hence, the recording of accused statement u/sec 313 is dispense and also the defense evidence is taken as nil and case was posted for arguments.
7. Heard arguments from the counsel of the complainant. However, the counsel for accused has not submitted his arguments and hence, it is taken as defense arguments heard. i
8. I have perused materials available on record.
(SCCH-12) 5 CC.No. 5006/2020
9. The points that would arose for my consideration are as follows:
1) Whether the complainant proves that, accused had issued a cheque bearing No.577023 dated 05022020 for Rs.2,46,659/ drawn on Canara Bank, Manangi in favour of complainant towards the repayment of loan and on presentation for encashment it was dishonored for the reasons 'Drawers Signature Differs' and in spite of issuance of legal notice dated 01.06.2020 the accused has not paid the cheque amount and thereby he committed an offence punishable under Section 138 of N.I.Act?
2) What order?
10. My answer to the above points are as follows:
[ Point No.1: In the Affirmative
Point No.2: As per final order
for the following:
REASONS
11. Point No.1: According to the complainant, it is
carrying business under the name M/s.Equitas Small Finance Bank Ltd., In the course of its financial services, it introduced loan for the benefit of its customers on their applications upon their execution of the requisite security documents. The accused had approached the complainant for availing loan and (SCCH-12) 6 CC.No. 5006/2020 the complainant had sanctioned loan to the accused vide Loan Account No.SEMYSRE0156978 and while availing the loan, the accused has also executed the loan agreement and various loan forms agreeing to abide by the terms and conditions of the repayment. Further, the accused became defaulter towards repayment of loan amount. On demand made by the complainant, the accused issued a cheque bearing No.577023, dated 05022020 for Rs.2,46,659/ drawn on Canara Bank, Manangi in favour of complainant towards the repayment of loan. The complainant presented the above said cheque through their banker for collection but the said cheque was dishonored due to 'Drawers Signature Differs' on 17032020. The complainant approached the accused and orally informed the accused about the fact of dishonor of cheque. The complainant also got issued legal notice dated 01062020 calling upon the accused to make the payment covered in the cheque along with interest within 15 days from the date of receipt of legal notice and the notice was sent through RPAD and was served upon accused. Inspite of service of legal notice to the accused, he has not complied the demand made by the complainant regarding the payment.
12. In the examination in chief, the entire complaint averments have been reiterated. The oral evidence of P.W.1 goes to show that, the accused had taken loan from the complainant and to repay the said amount, the accused had issued Ex.P.1 cheque in favour of complainant and same was (SCCH-12) 7 CC.No. 5006/2020 dishonored with an endorsement ''Drawers Signature Differs' on 17032020' as per Ex.P.2. Afterwards, the complainant issued legal notice to the accused as per Ex.P.3 through RPAD as per Ex.P.4 is a postal receipt. Ex.P.5 is returned postal cover.
13. Further, on careful consideration of Ex.P.1 cheque it appears that, the said cheque has been issued in favour of complainant i.e., M/s. Equitas Small Finance Bank Limited for a sum of Rs.2,46,659/. The Ex.P.2 is a Bank Memo. These documents clearly go to show that, Ex.P.1 cheque dishonored for the reason 'Drawers Signature Differs' on 17032020'. Regarding issuance of cheque in favour of complainant is not denied by the accused. At the same time, complainant able to establish the fact that, Ex.P.1 cheque relating to the accused and same has been issued in favour of complainant towards discharge of legally enforceable debt.
14. The accused has appeared before the court and he has not cross examined the P.W.1 and also not led defence evidence. The statement of the accused under section 313 of Cr.P.C, has been dispensed as the accused was not appearing before the court. All these facts discloses that, the accused has not at all taken any defence against the case of the complainant. He has neither denied the issuance of cheque nor admitted the issuance of cheque and as such, it is to be believed on the oral and documentary evidence led by the complainant.
(SCCH-12) 8 CC.No. 5006/2020
15. As the accused has not defended his case and therefore this court has come to the conclusion that the said cheque are relating to the account of the accused and signature appearing on the cheque is belonging to accused. As such, the presumption envisaged under Section 118 of N.I Act and Section 139 of N.I.Act can be inferred that the said cheque was drawn for consideration. Further, Section 139 of N.I.Act enjoins on Court to presume that the holder of the cheque or holder in due course received it for the discharge of any debt or liability.
16. In the present case, the cheque have been marked as Ex.P.1 is relating to the account of the accused herein. The signatures appearing on Ex.P.1(a) cheque is not denied by the accused. Ex.P.2 Bank memo goes to show that, the Ex.P.1 cheque have been presented for encashment. It means the said cheque has been presented within its validity period as well as within three months period. The Ex.P.2 goes to show that, the said cheque has been dishonored for above said reasons. The Ex.P.3 is the copy of Legal Notice dated 01062020. Ex.P.4 Postal Receipt. The legal notice has been issued within limitation from the date of receipt of information regarding dishonor of the Ex.P.1 cheque, as per the order of the Hon'ble Supreme Court in SMW (C) No.3/2020 in relation to computing period of limitation in prevalence of Covid19 virus. On careful consideration of these documents, it appears that, the (SCCH-12) 9 CC.No. 5006/2020 complainant has fulfilled the requirements and complaint is also filed within limitation period.
17. As stated above, the complainant has established the fact that, the accused has issued cheque for repayment of loan. The complainant also established all required ingredients to constitute an offence punishable under Section 138 of N.I.Act.
18. The accused has appeared before the court through his counsel but, he has not cross examined the P.W.1 and therefore the oral and documentary produced by the complainant remained unchallenged and undisputed. As the accused has not defended the case and therefore it is come to the conclusion that, the accused has failed to rebut the presumption and disprove the case of the complainant.
19. By considering oral and documentary evidence and statutory presumption available under Section 118 and 139 of N.I. Act, I am of the opinion that, the complainant has proved the fact that the accused has committed an offence punishable under Section 138 of N.I. Act. At the same time the accused failed to rebut the statutory presumption which are available to the complainant and disprove the case of the complainant. Hence, I answer Point No.1 in the Affirmative.
(SCCH-12) 10 CC.No. 5006/2020
20. Point No.2: Under Section 138 of N.I.Act, if a
person is convicted of the offence shall be punished with imprisonment for the term which may extent to two years or fine and it may extent the twice of amount of cheque or both. In the instant case on hand, the cheque issued for a sum of Rs.2,46,659/. Before punishing the accused for the alleged offence i.e., the offence punishable under Section 138 of N.I.Act, the object of this provision is also has to be considered and the object of bringing Section 138 of N.I.Act into the statute is to inculcate faith in the efficacy of banking operations and credibility in transacting business of negotiable instruments. It was to enhance the acceptability of cheque in settlement of liability by making the drawer liable for penalty in case of bouncing of cheque due to insufficient funds. Hence, keeping in view of the object of this provision and under the facts and circumstances of the instant case, as the case is of the year 2020, I am of the view that, it is just and fair to grant 6% interest on the cheque amount which will meet the ends of justice. Therefore, the accused is required to be sentenced to pay a fine of Rs.2,75,000/. Out of which Rs.2,72,000/ is awarded in favour of the complainant as compensation and the remaining fine amount of Rs.3,000/ shall be paid to the state. In default of payment of fine, it is ordered to undergo simple imprisonment for six months it would meet the ends of justice. Hence, I proceed to pass the following;
(SCCH-12) 11 CC.No. 5006/2020 ORDER Acting U/s 255(2) of Cr.P.C. the accused is convicted for the offence punishable u/s 138 of N.I. Act.
Further, the accused shall pay fine an amount of Rs.2,75,000/.
In default the accused shall undergo Simple Imprisonment for a period of six months.
Further, acting under section 357(3) of Cr.P.C Rs.3,72,000/ is awarded as compensation to the complainant out of the fine amount. The remaining fine amount of Rs.3,000/ to the state.
Office is to furnish the copy of
judgment to the accused at free of cost
immediately.
The Bail bond and surety bond
executed by the accused stands cancelled. (Dictated to the stenographer, transcript thereof, corrected by me and then pronounced in the open court this the 12th day of January, 2022).
(Mohamed Arifulla C.F), XI Addl. Small Causes Judge and ACMM, Bangalore.
(SCCH-12) 12 CC.No. 5006/2020
ANNEXURE
List of the witnesses examined on behalf of complainant:
PW1 Mr.Darshana K.M. List of the documents exhibited on behalf of complainant:
Ex.P.1 Cheque Ex.P.1(a) Signature of accused in Ex.P.1. Ex.P.2 Bank memo Ex.P.3 Copy of Legal Notice Ex.P.4 Postal Receipt Ex.P.5 undelivered Postal cover.
List of the witnesses examined on behalf of accused:
NIL List of the documents marked on behalf of accused:
NIL (Mohamed Arifulla C.F), XI Addl. Small Causes Judge and ACMM, Bangalore.