Bangalore District Court
N.C.Raju vs S.Sharath Kumar @ Amith on 2 May, 2019
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 2nd day of May - 2019
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.18880/2016
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : N.C.Raju,
S/o.C.Narasingaraya,
Aged about 46 years,
R/at No.5/1783,
"Kushi Nilaya",
23rd Cross Road,
MRCR Layout,
Govindarajanagar,
Bengaluru-79.
(Rep. by Sri.Rameshchandra Rai.K,
Advocate)
V/S
Accused : S.Sharath Kumar @ Amith,
S/o.Late.H.L.Sridhar,
Aged about 30 years,
R/at. No.17, 1st Main Road,
Opp. Government School,
Kamakshipalya,
Bengaluru-79.
(Rep.by Sri.Harish Kumar.R.S,
Advocate)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
Judgment 2 C.C.18880/2016
FINAL ORDER : Accused is Convicted.
DATE OF ORDER : 02.05.2019.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
JUDGMENT
The complainant has presented the instant complaint against the accused on 19.07.2016 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheques of Rs.30,000/-.
2. The facts raised by the complainant in the present case is as follows:
The complainant was photographer by profession and running his business in the name and style of Chetan Digital Studio/Chetan Photo Studio at Kamakshipalya, Magadi Main Road, Bengaluru. The accused was known person to the complainant for past several years, as such, he approached the complainant for the purpose of taking photographs, videos of house warming ceremony held at Judgment 3 C.C.18880/2016 No.17, 1st Main Road, Kamakshipalya, Bengaluru-79, in the year 2011. the total cost of the said videos, photographs etc., was Rs.27,240/- and out of the same, the accused had paid an advance of Rs.3,000/- and balance of Rs.24,240/- was due and liable by the accused to the complainant.
The complainant has contended that, he demanded the payment of balance amount, the accused requested the complainant to issue bill after some time stating that, the marriage of the accused was also fixed and he wanted videos and photographs of the said marriage function, therefore, the balance amount would be paid along with charges of the marriage videos and photographs. The complainant had believed the accused.
The complainant has further alleged that, the accused had placed an order for videos and photographs of his marriage function, which was held on 23.10.2013 and 24.10.2013 at Sri.Meenakshi Kalyana Mantapa, Sri. Rajarajeshwarinagar, Mysore Road, Bengaluru. The cost of the said business assignment was Rs.1,60,000/-, for Judgment 4 C.C.18880/2016 which, the accused had paid an advance of Rs.98,000/- and he was in due of Rs.62,000/- with respect to the marriage function videos and photographs coverage. The accused has promised to pay, both the amounts due as aforesaid within 10 days of the marriage. However, the accused went on postponing the matter. In the meanwhile, the accused had requested and insisted the complainant to deliver the marriage videos and photographs, the complainant had delivered the same to the accused and also issued the bills towards the videos and photos of the said functions. As per the said bill, the total amount due by the accused was Rs.82,240/-. However, the accused continued to postpone the payment of said amount due.
The complainant has further alleged that, when he demanded the accused, to pay the arrears of due, on 25.12.2014, the accused got issued the cheque bearing No.358038 dated:28.12.2014 drawn on Axis Bank Ltd., Basaveshwaranagar Branch, for sum of Rs.50,000/-
towards part payment of the said money. However, on 27.12.2014, the accused called the complainant and Judgment 5 C.C.18880/2016 requested not to present the said cheque for encashment, as his wife was pregnant, he needed photographs of her "Sreemantha Ceremony". Once again, the complainant believing the words of the accused in the interest of continuing the business, the complainant has postponing the presentation of the said cheque.
The complainant has further alleged that, he took the photographs of sreemantha ceremony of the wife of accused and the charges of the photo coverage was Rs.14,000/-, against the said money, the accused was paid Rs.2,000/- as advance. The complainant had issued the bill for the same and total outstanding from the business of the accused, with regard to the arrears of videos and photographs coverage of three functions amounting to Rs.98,240/-. The accused had collected the said bills and agreed to pay the balance amount to complainant.
The complainant has further contended that, inspite of repeated demands and requests made by him, the accused went on postponing the matter, failed and Judgment 6 C.C.18880/2016 neglected to make payment of the balance amount due. Thereafter, the accused towards the part payment of the above said total outstanding of Rs.98,240/-, further issued two cheques bearing Nos.000013 and 000015 dated:11.04.2016 drawn on Punjab and Maharashtra Co- operative Bank Ltd., Basaveshwaranagar Branch for sum of Rs.20,000/- and Rs.10,000/- respectively with an assurance to honour the said cheques on the date of presentation.
The complainant has further averred that, at the instruction of the accused, he presented both the cheques for encashment on 10.05.2016, then he got shock and surprise to see the bank endorsement dated:10.05.2016 stating "Funds Insufficient". Then, he through his counsel got issued legal notice to the accused on 04.06.2016, which was duly served upon accused on 07.06.2016. However, he neither replied the notice nor paid the money covered under the cheques, the accused deliberately got issued the questioned cheques without maintaining sufficient money in his account dishonestly. Thereby, he committed the offence punishable under Judgment 7 C.C.18880/2016 Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
3. After receipt of the private complaint, my predecessor in office took the cognizance and got registered the PCR and recorded the sworn statement. Since made out prima-facie grounds to proceed against the accused for the alleged offence, got issued process.
4. In response to the summons, the accused appeared through his counsel and obtained the bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to him, wherein, he denied the same and claimed to have the defence.
5. To prove the case of the complainant, he himself choosen to examined as PW.1 and got marked Ex.P1 to P26(a). The PW.1 was subjected for cross-examination by the advocate for the accused.
6. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein, the accused denied the same and answer given Judgment 8 C.C.18880/2016 by him was recorded. In support of the defence, the accused himself was examined orally as DW.1 and not produced any document in support of his defence. The DW.1 was also subjected for cross-examination by the advocate for the complainant.
7. I have heard the arguments of both side counsels.
8. On going through the rival contentions, based on the substantial evidence available on record, the following points have been arising for determination:
1) Whether the complainant proves beyond the reasonable doubt that, the amount made mentioned in Exs.P1 & P2 cheques for sum of Rs.30,000/- is the legally existing debt payable by the accused to the complainant?
2) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?
3) What Order?
9. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Affirmative Point No.2 : In the Affirmative Point No.3 : As per final order, for the following:Judgment 9 C.C.18880/2016
REASONS
10. POINT NOs.1 and 2: Since both the points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.
The PW.1 to prove his case choosen to examined himself and filed affidavit by reiterating the complaint averments in toto, and produced the documents at Exs.P1 to P26(a), they are:
a) Exs.P1 and P2 are the cheques bearing No.000013 and 000015 issued by the accused for sum of Rs.20,000/- and Rs.10,000/- respectively dated:
11.04.2016, drawn on Punjab and Maharashtra Co-operative Bank Ltd., Basaveshwaranagar Branch, Bengaluru.
b) Exs.P1(a) and P2(a) are the alleged signatures of accused.
c) Exs.P3 and P4 are the Bank Memos
dated:10.05.2015.
d) Ex.P5 is the Legal Notice dated:
04.06.2016.
e) Ex.P6 is the Postal receipt.
f) Ex.P7 is the Postal Acknowledgment Card.
g) Exs.P8 to P10 are the receipts pertaining to the complainant studio.
h) Exs.P11 and P12 are the marriage invitations pertaining to the accused. Judgment 10 C.C.18880/2016
i) Exs.P13 to P15 are the house warming ceremony photos pertaining to the accused.
j) Exs.P16 to P21 are the marriage photos pertaining to the accused.
k) Exs.P22 and P23 are the Sreemantha ceremony photos pertaining to the wife of accused.
l) Exs.P24 and P25 are the CDs.
m) Ex.P26 is the original cheque bearing No.358038 dated:28.12.2014 for Rs.50,000/- issued by accused to the complainant and
n) Ex.P26(a) is the alleged signature of accused.
The PW.1 was subjected to the cross-examination by the advocate for the accused.
11. In order to prove the defence of the accused, he himself choosen examined orally as DW.1 also cross- examination by the advocate for complainant.
12. After cross-examination of PW.1, while recording 313 statement, the accused gave his statement that, the questioned cheques at Exs.P1 and P2 as well as signatures found therein is of him. He further stated that, for the purpose of his marriage and the sreemantha ceremony of his wife, regarding photographs and videos, Judgment 11 C.C.18880/2016 he gave contract to the complainant for Rs.1,60,000/-, out of which, the accused had paid Rs.98,000/- and Rs.20,000/- respectively to the complainant in cash and only liable to pay sum of Rs.50,000/- balance. After handed over 2 albums pertaining to the said events by the complainant, only accused has to pay Rs.50,000/-, in that regard, as a security the accused got issued 3 cheques to the complainant and again he paid sum of Rs.20,000/- to the complainant. After handed over the album to the accused by the complainant, the questioned cheques would be passed and the complainant had not handed over the album, without given any information to the accused, got vacated his shop. Still he is liable to pay sum of Rs.30,000/- to the complainant, if the complainant gave Karisma album to the accused.
13. That apart, the accused choosen to entered into the witness box and orally examined as DW.1 on oath. Wherein, he deposed that, the complainant is a family photographer of the accused and since 5 years he knew him. The complainant was the photographer of all the programmes held in the family of the accused and he also Judgment 12 C.C.18880/2016 called photography and photography of his marriage for the contract of Rs.1,60,000/-. Accordingly, he paid advance of Rs.10,000/- to the complainant and 10 days before his marriage the accused gave Rs.98,000/- in cash to the complainant and for the payment of remaining amount of Rs.50,000/- in the year 2014, he gave singed blank cheque to the complainant. After handed over the photos and album of his marriage, then only ask him to get present the said cheque for encashment. Then complainant told him that, album was get ready and said cheques were directed to not present them for encashment, as he wishes to pay the said money by cash. The accused gave Rs.50,000/- by cash to the complainant in respect of the cheque and he asked him to return the cheque, then complainant told him that, it was in his house and misplaced, after trace out the same would return to the accused.
14. The accused also deposed that, he gave contracts of photographs and video pertaining to his marriage. He also deposed that, in respect of sreemantha ceremony of his wife, he assigned business to the complainant of Judgment 13 C.C.18880/2016 photographs for sum of Rs.35,000/- and gave advance of Rs.5,000/- and in respect of the payment of remaining Rs.30,000/-, he gave singed, amount mentioned cheque, to the complainant without mentioning anybody's name in the instrument. As agreed, the complainant had not handed over the album and CD, he got vacated his shop, if he gave album and CD to the accused, still he ready to pay Rs.35,000/- to the complainant. He is not signatury to Exs.P8 to P10 receipts produced by the complainant. In belief, he not lodged complaint against the complainant in respect of the cheque given for Rs.50,000/- earlier. Therefore, he is not liable to pay any money, therefore, he prayed for his acquittal. The DW.1 was subjected for cross-examination.
15. On going through the rival contentions of the parties, the following facts are remains undisputed. The complainant is doing the video and photographs business and he was the family photographer of the accused family is not in dispute. The fact that, in respect of the house warming ceremony of the accused as found in Exs.P13 to P15 photographs along with CD coverage made by the Judgment 14 C.C.18880/2016 complainant is not in dispute. The fact that, in respect of the said house warming ceremony, the accused gave contract to the complainant for photographs and videography is not in dispute. The fact that, in respect of the said business, the accused has made portion of advance money in respect of the balance agreed amount is not in dispute.
16. The fact that, the accused also gave contract to the complainant in respect of his marriage ceremony as disclosed in Exs.P11 and P12 marriage invitation card as well as photographs and CD produced at Exs.P16 to P21 is not in dispute. The fact that, the accused also gave contract to the complainant with regard to photographs and video in respect of Sreemanth ceremony of his wife as found in Exs.P22 and P23 along with enclosed CD is not in dispute.
17. The fact that, the questioned cheque at Exs.P1 and P2 as well as Ex.P26 including signatures found therein, so also, the amount made mentioned therein by the accused himself is not in dispute. The fact that, Judgment 15 C.C.18880/2016 compliance of mandatory provision with regard to the maintainability of the present case is not in dispute.
18. It was the specific contention of the complainant that, in respect of the house warming ceremony, the accused gave contracts for photographs and videos of Rs.27,240/-, out of which Rs.3,000/- as advance was paid by the accused and balance was Rs.24,240/-. Later on, the accused also assigned the photographs and videos of his marriage function held on 23.10.2013 and 24.10.2013 for sum of Rs.1,60,000/-, out of which Rs.98,000/- was paid by him to the complainant and sum of Rs.62,000/- was due by the accused. Accordingly, in respect of the above said two ceremonies, the accused was due of Rs.82,240/-. Taken into consideration of the said calculation made by the complainant in the pleading, the total due payable in respect of both the transactions is to be Rs.86,240/-, but the complainant was made wrong calculation in the pleading that, it was due of Rs.82,240/-. If at all, it was due of Rs.82,240/- when the accused was paid Rs.4,000/- is not been explained by the complainant. However, as per say of complainant due of Judgment 16 C.C.18880/2016 the accused of Rs.82,240/- has to be considered as it is beneficially calculation made in favour of the accused.
19. Whenever, the complainant asked the accused, for pay the arrears of the said due amount, then accused got issued Ex.P26 cheque for Rs.50,000/- dated:28.12.2014, when the complainant came forward, the movement of presenting the said cheque, then accused asked him not to present the said cheque, as the complainant take one more photographs and videography in respect of his wife's sreemantha ceremony. Accordingly, for sum of Rs.14,000/- the said photographs and videography was made by the complainant, out of which Rs.2,000/- only paid by the accused and balance of Rs.12,000/- is not been paid by the accused. Accordingly, the accused was due of Rs.98,240/-. From the said contention taken by the complainant, it discloses that, while calculating the balance due by the accused in para No.6 of his pleadings, he made calculation of Rs.82,240/- as against Rs.86,240/-, but in para No.8 of his pleadings, he stated it was the due of Rs.98,240/-. Perhaps, by making correct calculation of Rs.86,240/- as against Rs.86,240/- Judgment 17 C.C.18880/2016 by including Rs.12,000/- the sreemantha programme photographs, the complainant contended the said money was due. In respect of payment of the said huge amount, for the payment of portion of money of Rs.30,000/-, accused got issued the questioned cheques at Exs.P1 and P2.
20. On going through the rival contentions of the parties, the role of the complainant as photographer and videographer for the event of the house warming ceremony, marriage ceremony as well as sreemanth ceremony of his wife, is not in dispute. During the course of cross-examination of PW.1, he deposed that, in respect of house warming ceremony the bill amount was Rs.27,240/-, in that regard he produced bills at Exs.P8 to P10.
21. On going through the Exs.P8 to P10 dated:05.01.2014, 02.02.2014 and 10.10.2015, it discloses, for sum of Rs.27,240/- first event of house warming ceremony contract was given by the accused to the complainant, wherein, Rs.3,000/- was paid as Judgment 18 C.C.18880/2016 advance. The same was pleaded by the complainant. Likewise, as per Ex.P10 regarding the marriage ceremony, photographs and video, it discloses, the contract for sum of Rs.1,60,000/- was made and accused was paid sum of Rs.98,000/- as advance and balance was Rs.62,000/-. As per Ex.P10 regarding the sreemantha ceremony of the wife of accused, contract was made for RS.14,000/-, advance of Rs.2,000/- was paid by the accused, balance of Rs.12,000/- was to be payable by the accused. In calculation of all the three bills, it discloses, the accused was paid Rs.1,03,000/- as advance amount, as against the total amount and balance due by him was Rs.98,240/-.
22. No doubt, the accused while cross-examining the PW.1 contended that, the said bills had not bares signature of accused. It was suggested, those are created. The complainant being a photographer as well as videographer, at the most he can produced the carbon copy of the bills as disclosed in Exs.P8 to P10, as the originals should be given to the accused. But having received original bills, the complainant has not stated Judgment 19 C.C.18880/2016 anything about the same, therefore, except formal denial regarding the genuineness of the said bills, the accused has not taken the contention that, original bills are not given to him. Under such circumstances, in the absence of production of original bills, by the complainant, those carbon copies of the bills having its own evidentiary value. Accordingly, the same appears tobe prima facie, genuine, hence, it is to be relied upon. As per the said bills, due payable by the accused was Rs.98.240/-. No doubt, the complainant has not filed present case for recovery of said sum, but only in respect of the said cheques for Rs.30,000/-.
23. On going through the cross-examination of DW.1, it discloses, the Ex.P26 cheque for sum of Rs.50,000/- got issued by the accused was marked. The accused has contended that, in respect of the said cheque amount, the accused has paid in cash, but not returned the said cheque to the accused. Even, the said suggestion is also put to PW.1. The production of Ex.P26 in the present case, itself prima facie discloses, the accused got issued the same for sum of Rs.50,000/-. If at all, the accused Judgment 20 C.C.18880/2016 was not paid the said cheque amount dated:28.12.2014 much prior to the present cheques dated:11.04.2016, he could have initiate legal proceedings. But for the reasons best known to the complainant, he kept quiet. If not received any money as alleged, which covered under the Ex.P26, why he retained those cheques without presenting it, for encashment or initiate any legal action for recover the said money is not been explained. Therefore, the say of accused by way of suggestion to the PW.1 as well as specific statement of DW.1, it has to draw the inference that, since the amount covered under the Ex.P26 cheque was paid by the accused in cash, the complainant has not initiated any action. However, the amount covered under the Ex.P26 cheque is not subject matter of the present case. Therefore, it has no significance and no need to make extra discussion on the said document.
24. It was the specific case of the complainant that, the accused was due sum of Rs.98,240/-, towards part payment, accused got issued the questioned cheques at Exs.P1 and P2 for sum of Rs.30,000/-. During the course Judgment 21 C.C.18880/2016 of cross of DW.1 suggestion was made to him that, Rs.13,000/- towards the photograph expenses of house warming ceremony was not been paid by the accused. The said suggestion was against the very contention of the complainant as well as against his own document at Ex.P8 bill. Against the bill balance of Rs.24,240/- at Ex.P8, the advocate for the complainant was wrongly suggested Rs.13,000/- was due and not paid by the accused. If it was the contention of the complainant, why he wrongly pleaded in his complaint is also not been satisfactorily explained, the said suggestion goes against his own pleading as well as the bill at Ex.P8. Therefore, the said sum of Rs.13,000/- is due by the accused. If at all, considered, the other balance as per Ex.P10 regarding marriage photographs expenses balance was Rs.62,000/-, out of which, as per Ex.P26 since the complainant has not initiated any action for recover the said money, the accused has suggested to the PW.1 as well as deposed through him that, Rs.50,000/- towards the cheque amount was paid by him, the balance has to be considered as Rs.12,000/-. As per Exs.P8 to P10 the Judgment 22 C.C.18880/2016 balance of Rs.25,000/- was due by the accused by deducting Rs.50,000/- at Ex.P26.
25. That apart, the complainant has relied upon Ex.P10 stating, the Sreemantha Ceremony of the wife of accused, regarding photographs and album charges at Rs.14,000/-, out of which Rs.2,000/- was paid and balance was Rs.12,000/-. As per Ex.P10 pleading were made, but while suggesting to the DW.1 in his cross- examination, the said sum was due by the accused, but the DW.1 has repeatedly deposed in this cross- examination that:
"¹ÃªÀÄAvÀzÀ MmÁÖgÉ ¥sÉÆÃmÉÆUÁæ¦üAiÀÄ ©°è£À ªÉÆvÀÛ gÀÆ.35,000/-. CzÀgÀ°è gÀÆ.5,000/- ªÀÄÄAUÀqÀ ¤ÃrzÀÝgÀÄ. CzÀgÀ°è gÀÆ.30,000/- ¨ÁQ PÉÆqÀ¨ÉÃPÁVzÉ. CµÀÄÖ ªÉÆvÀÛ FUÀ®Æ ¨ÁQ EzÉ JAzÀgÉ ¸Àj.
¹ÃªÀÄAvÀ PÁAiÀÄðPÀæªÀÄzÀ gÀÆ.30,000/- «£ÀB ¦AiÀiÁð¢UÉ £Á£ÀÄ ¨ÉÃgÉ AiÀiÁªÀÅzÉà ªÉÆvÀÛ PÉÆqÀ®Ä ¨ÁQ E®è. £Á£ÀÄ UÀȺÀ ¥ÀæªÉñÀzÀ ©°è£À ¨ÁQ gÀÆ.24,240/-, ªÀÄzÀĪÉAiÀÄ PÁAiÀÄðPÀæªÀÄzÀ ©°è£À ¨ÁQ gÀÆ.62,000/- ºÁUÀÆ ¹ÃªÀÄAvÀ PÁAiÀÄðPÀæªÀÄzÀ ºÀt gÀÆ.12,000/- ªÀiÁvÀæ £Á£ÀÄ PÉÆqÀ®Ä ¨ÁQ EzÉ JAzÀgÉ ¸ÀjAiÀÄ®è. ¸ÁQëAiÀÄÄ ¸ÀévÀB ªÀÄÄAzÀĪÀgÉzÀÄ ¹ÃªÀÄAvÀ PÁAiÀÄðPÀæªÀÄzÀ Judgment 23 C.C.18880/2016 gÀÆ.30,000/- «£ÀB ¦AiÀiÁð¢UÉ £Á£ÀÄ ¨ÉÃgÉ AiÀiÁªÀÅzÉà ªÉÆvÀÛ PÉÆqÀ®Ä ¨ÁQ E®è JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. £Á£ÀÄ ¦AiÀiÁð¢UÉ J¯Áè ©°è£À ªÉÆvÀÛ gÀÆ.98,240/- UÀ¼À£ÀÄß ¥ÁªÀw ªÀiÁqÀ®Ä §zÀÞ JAzÀgÉ ¸ÀjAiÀÄ®è."
26. On going through the cross-examination of DW.1 re-produced above, though complainant has stated, Sreemantha Ceremony photographs expenses was Rs.14,000/- and the complainant has stated that, which was Rs.35,000/-, out of which Rs.5,000/- was paid and he was liable to pay Rs.30,000/- and still he is ready to pay the said amount, if the complainant has furnished Karisma Album in respect of the said programme. The DW.1 has repeatedly deposed that, except the expenses of Sreemantha Ceremony of Rs.30,000/- he is not liable to pay any money either in respect of house warming ceremony of Rs.24,240/- or the marriage photograph expenses at Rs.62,000/- or Rs.12,000/- of Sreemantha Ceremony expenses as alleged by the complainant, but he asserted Rs.30,000/- in respect of the Sreemanth Ceremony of his wife is only liable to be pay by him and not liable to pay the arrears of amount pleaded in the Judgment 24 C.C.18880/2016 complaint at Rs.98,240/-. From the above said categorical admission of the PW.1, it made clear that, the accused has admitted his liability to pay Rs.30,000/- in respect of Sreemantha Ceremony photographs expenses.
27. No doubt, the present cheques at Exs.P1 and P2 is also of Rs.30,000/- and he not made any claim in respect of Rs.98,240/-. During the course of cross of DW.1, the suggestion made by the advocate for the complainant discloses that, in respect of house warming ceremony and marriage function Rs.25,000/- only due. The said due as per Exs.P8 and P9 is not admitted by the accused. The accused has repeatedly asserted that, as agreed by the complainant, he is not furnished Karizma album in respect of Sreemantha Ceremony. The complainant has stated that, he furnished Karizma album to the accused. Regarding furnish of Karisma or Erisma album as per Ex.P10, if at all, the complainant has supplied the said album as he contended, definitely, he could have collect the necessary endorsement at the time of supply the same, as he was very much deligent in collecting the cheques for balance amount, but not did so. Even during Judgment 25 C.C.18880/2016 the course of cross-examination of PW.1, he deposed that, he had no impediment to furnish soft copy or CD in respect of the photograph or video done by him. Even, the said document is not been furnished by the complainant in the present case.
28. However, though the complainant has claimed the arrears of huge amount, he failed to extract any admission from the mouth of DW.1, regarding payment of arrears of Rs.98,240/-, but he in successful to got the admission regarding the payment of Rs.30,000/- from the accused in respect of photograph and videograph balance amount. Though, the accused has deposed that, against the bill at Ex.P10 of Rs.14,000/- the sreematha expenses bill was Rs.35,000/- and he is liable to pay Rs.30,000/-. Though, the said amount is more high, then the amount made mentioned in Ex.P10 bill, since accused himself has admitted the balance amount due by him is of Rs.30,000/- it is tobe considered as in respect of the questioned cheques at Exs.P1 and P2, therefore, in view of the clear cut admission made by the accused, regarding the due of Rs.30,000/- payable by him to the Judgment 26 C.C.18880/2016 complainant, it is made clear that, the said amount is existence of legally recoverable debt. Though, the accused got issued the questioned cheques at Exs.P1 and P2 for making payment of the said amount, at the movement of their presentation to the bank, the same came to be dishonoured for want of sufficient funds. Despite, issued legal notice to the accused as per Ex.P5, and the same came to be served to the address of the accused as per Ex.P7, he neither replied nor comply the legitimate demand made by the complainant as required under law. Thereafter, he continued the commission of offence under Section 138 of Negotiable Instruments Act. The complainant after comply the mandatory provision has filed the present case. Though, the accused has appeared and contested the matter, he failed to disprove the very case of the complainant and complainant has successfully proved his case beyond the reasonable doubt. Therefore, the accused is tobe convicted by imposing fine sentence in respect of the cheques amount.
29. Looking into the facts and circumstances of the case, though the complainant has proved the very case, Judgment 27 C.C.18880/2016 in order to claim the double amount of cheque or any interest, in respect of he delivered the necessary photographs and Karizma or Erizma album as mentioned in the bill, he not produced any document before this court, as to he successfully concluded the contracts covered under the Exs.P8 to P10. Though, he undertakes to produce the e-soft copy or CD in respect of he attended the alleged photography or videography work of the accused, he not produced the same. Therefore, in that lacks of the complainant, he neither entitled for interest nor for double the amount of cheques. Looking into the facts and circumstances of the case, it is a fit case to convict the accused by imposing fine sentence in respect of the cheques amount of Rs.30,000/- along with the additional fine amount of Rs.2,000/-, in all the accused shall pay fine of Rs.32,000/-, out of which Rs.30,000/- after recover the fine amount shall be payable to the complainant as compensation and remaining amount of Rs.2,000/- shall be payable to the state as fine. If the accused failed to pay the same, he shall undergo simple imprisonment for 03 (Three) Judgment 28 C.C.18880/2016 months. If that is done, it will meet the ends of justice. As discussed above, the complainant has proved his case beyond reasonable doubt. In the result, the accused shall sentence to pay the fine amount as detailed in the order portion. Accordingly, Point Nos.1 and 2 are answered in the Affirmative.
30. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
ORDER Accused found guilty for the offence punishable under Section 138 of Negotiable Instruments Act.
Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay fine of Rs.32,000/-.
Out of the said fine amount, sum of Rs.30,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount of Rs.2,000/- shall be payable to the state as fine amount.Judgment 29 C.C.18880/2016
Failing which, as default sentence, the accused shall under go simple imprisonment for 03 (Three) Months.
The bail bond and cash security/surety bond of the accused stands cancelled, subject to comply the judgment.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 2nd day of May - 2019) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : N.C.Raju List of Exhibits marked on behalf of Complainant:
Exs.P1 & P2 : Original Cheques (2 Nos.) Exs.P1(a) & P2(a) : Signatures of accused Exs.P3 & P4 : Bank endorsements Ex.P5 : Office copy of legal notice Ex.P6 : Postal receipt Ex.P7 : Postal Acknowledgment card Exs.P8 to P10 : Studio Receipts Exs.P11 & P12 : Marriage invitations Exs.P13 to P23 : Photographs Judgment 30 C.C.18880/2016 Exs.P24 & P25 : CDs Ex.P26 : Original cheque Ex.P26(a) : Signature of accused List of Witnesses examined on behalf of the defence:
DW.1 : S.Sharath Kumar @ Amith List of Exhibits marked on behalf of defence:
- Nil -
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.Judgment 31 C.C.18880/2016
02.05.2019.
Comp -
Accd -
For Judgment Judgment pronounced in the open court vide separate order.
*****
ORDER
Accused found guilty for the offence
punishable under Section 138 of
Negotiable Instruments Act.
Acting under Section 255(2) of
Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay fine of Rs.32,000/-.
Out of the said fine amount, sum of Rs.30,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining Judgment 32 C.C.18880/2016 amount of Rs.2,000/- shall be payable to the state as fine amount.
Failing which, as default sentence,
the accused shall under go simple
imprisonment for 03 (Three) Months.
The bail bond and cash
security/surety bond of the accused
stands cancelled, subject to comply the judgment.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.