Bangalore District Court
Sri. T. Chandra Shekaraiah vs Sri. V. Thimmaiah on 16 March, 2022
IN THE COURT OF THE XII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU
Dated: This the 16th day of March 2022
Present : Sri Siddaramappa Kalyan Rao, B.A., LL.B.,
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
CC.No.23756 of 2017
COMPLAINANT/S: Sri. T. Chandra Shekaraiah.,
S/o. Late Thammaiah.,
R/at. No.231,
BHEL Mini Colony,
3rd Main, Pipeline,
T.Dasarahalli,
Bengaluru-560 057.
(Represented by
Sri. G.Ravikumar, Advocate)
- Vs -
ACCUSED: Sri. V. Thimmaiah,
S/o. Late Venkatappa,
R/at. No.44, 6th Cross,
Balajinagar,
Mallathalli Main Road,
Bengaluru - 560 056.
(Represented by
Sri. Adinarayanappa., Advocate)
Offence Under Section 138 of Negotiable
Instruments Act
Plea of the accused Pleaded not guilty
Final Order Convicted
******
2
CC.No.23756/2017
JU DG ME N T
This complaint is filed under section 200 of Cr.P.C for
the offence punishable under section 138 of Negotiable
Instruments Act. 1881.
2. The brief facts of the complainant case is
that:
Accused is the family friend of complainant, hence, in
view of said relationship, during the first week of January
2016 accused approached the complainant and requested
for hand loan of Rs.4,00,000/- for his dire necessities.
Hence, upon request of accused, complainant paid a sum
of Rs.4,00,000/- by way of cash on 15/01/2016. At the
time of borrowing the said amount, accused has assured to
complainant to repay the entire loan amount in the month
of December 2016. When complainant demanded to
accused for repayment of amount in the month of
December 2016, accused requested time till June 2017 on
the ground of demonetization. Finally, accused issued a
post dated cheque bearing No:711705 dated 29/06/2017
3
CC.No.23756/2017
for a sum of Rs.4,00,000/- drawn on Corporation Bank,
Mahalakshmi Layout Branch, Bengaluru-86 in favour of
complainant. When the complainant presented the said
cheque through his Banker State Bank of India,
Yeshwanthpur Branch, Bengaluru, it was dishonoured for
the reasons "Non-CTS cheque RBI stopped these cheques
in 2013 itself only" on 03/07/2017.
3. Thereafter, complainant having no other choice
got issued legal notice to the accused on 25/07/2017
through RPAD and it was duly served on the accused on
26/07/2017. The accused has sent an evasive reply notice
on 02/08/2017. Hence, the present complaint is filed on
31/08/2017.
4. After filing of the complaint, this court has taken
the cognizance of offence under section 138 of N.I Act and
registered a Private complaint. After recording the sworn
statement of the complainant, this court has registered the
criminal case against the accused for the offence
punishable under Section 138 of Negotiable Instruments
4
CC.No.23756/2017
Act. Summons issued to the accused. The accused
appeared through his counsel and enlarged on bail. There
afterwards, plea of accusation was read over and explained
to accused in the language known to him and he pleaded
not guilty and claims to be tried.
5. When the case was posted for recording of
statement of the accused under section 313 of Cr.P.C., the
accused has denied the entire incriminating evidence
appearing against him. The accused is examined as
D.W.1, and got marked 7 documents in support of his
defence.
6. In order to prove the case, the complainant is
examined as PW-1 and got marked the documents from
Ex.P.1 to Ex.P.14.
7. It is the specific defence of the accused that prior
to 2015 accused and complainant were cordial and
complainant was frequently visiting to the house of
accused for some work. At that time without knowledge of
5
CC.No.23756/2017
complainant, accused has taken the cheque from accused
house. The complainant contested GP Election during
2015 at native village and there was verbal clash between
the accused and complainant, from then, accused has
stopped visiting complainant house. It is the further
defence of the accused that accused has no knowledge with
regard to possession of Ex.P.1 cheque till notice is issued
to accused on 25/07/2017. There is no any monetary
transaction with the complainant. Hence, for discharge of
debt, accused has not issued Ex.P.1 cheque. Hence, on
the above said grounds prays to dismiss the complaint.
8. Heard both sides. The counsel for complainant
and accused has filed memo along with citations. Perused
the entire oral and documentary evidence placed on record.
9. The following points arose for my consideration:
1. Whether the complainant proves that
there is existence of legally recoverable
debt as stated in the complaint?
2. If so, whether the complainant proves
that Ex.P.1 cheque is issued towards
6
CC.No.23756/2017
discharge of legally recoverable debt by
the accused?
3. Whether the complainant proves that
the accused has committed an offence
under Section 138 of Negotiable
Instruments Act?
4. What order?
10. My findings to the above points are as under:
Point No.1 : In the Affirmative;
Point No.2 : In the Affirmative;
Point No.3 : In the Affirmative;
Point No 4 : As per final order,
for the following:
REA S ON S
POINTS NO.1 AND 2:
11. These points are taken together for common
discussion in order to avoid repetition of facts.
12. It is the specific case of the complainant that
accused is the family friend of complainant and hence, in
view of above said relationship accused approached the
complainant during the first week of January 2016 seeking
7
CC.No.23756/2017
hand loan of Rs.4,00,000/- for his necessities. Hence, in
view of the request made by the accused, complainant paid
a sum of Rs.4,00,000/- to accused by way of cash on
15/01/2016. At the time of borrowing the said amount,
accused has assured to complainant to repay the entire
loan amount in the month of December 2016. When
complainant demanded to accused for repayment of
amount in the month of December 2016, accused
requested time till June 2017 on the ground of
demonetization. Finally, accused issued Ex.P.1 cheque
bearing No:711705 dated 29/06/2017 for a sum of
Rs.4,00,000/- drawn on Corporation Bank, Mahalakshmi
Layout Branch, Bengaluru-86 in favour of complainant.
When the complainant presented the said cheque through
his Banker State Bank of India, Yeshwanthpur Branch,
Bengaluru, it was dishonoured for the reasons "Non-CTS
cheque RBI stopped these cheques in 2013 itself only" on
03/07/2017 as per Ex.P.1(b).
13. To substantiate the above said contention, the
8
CC.No.23756/2017
complainant is examined as PW-1 and has marked the
documents from Ex.P.1 to Ex.P.14.
Ex.P.1 is the account payee cheque of Corporation
Bank, Mahalaxmi Layout Branch, Bengaluru dated
29/06/2017 bearing No:711705 for a sum of
Rs.4,00,000/- issued to T.Chandra Shekaraiah i.e., the
complainant and it is issued by accused. Ex.P.1(a) is the
signature of the accused. Ex.P.1(b) is the cheque
endorsement on Ex.P.1 cheque mentioning that the above
said cheque is came to be dishonoured for the reasons
"Non-CTS cheque RBI stopped these cheques in 2013 itself
only" on 03/07/2017. Ex.P.2 is the office copy of legal
notice issued to accused dated 25/07/2017. Ex.P.3 is the
Postal receipt dated 25/07/2017. Ex.P.4 is the Postal
acknowledgement dated 26/07/2017. Ex.P.5 is the reply
notice issued to complainant counsel dated 02/08/2017.
Ex.P.6 to Ex.P.10 are the statement of account standing in
the name of Yashaswini Traders from 01/04/2015 to
31/12/2015, 01/01/2016 to 29/02/2016, 01/03/2016 to
05/04/2016, 01/03/2016 to 27/04/2017 and
9
CC.No.23756/2017
01/07/2016 to 23/09/2016. Ex.P.11 is the VAT
Registration certificate standing in the name of Yeshaswini
Traders dated 30/03/2007. Ex.P.12 is the Lease
agreement dated 05/01/2015. Ex.P.13 is the
vakalathnama and Ex.P.13(a) is the signature of the
accused. Ex.P.14 is the plea dated 07/02/2018 and
Ex.P.14(a) is the signature of the accused.
14. On the other hand, accused is examined as
D.W.1 and got marked Ex.D.1 to Ex.D.7 documents.
Ex.D.1 is the salary slip issued by BBMP for the
month of August 2021 standing in the name of accused
Thimmaiah.V. where he is drawing a salary of Rs.91,683/-.
Ex.D.2 is the salary slip issued by BBMP for the month of
July 2021 standing in the name of accused Thimmaiah.V.
where he is drawing a salary of Rs.81,344/-. Ex.D.3 is the
loan sanction communication letter issued to accused by
Can Fin Homes Ltd where an amount of Rs.25,00,000/- is
sanctioned in favour of accused. Ex.D.4 is the RTC extract
of land bearing Sy.No:27 of Bhaktarahalli Village for the
10
CC.No.23756/2017
year 2021-22 measuring to the extent of 63.39 acres
standing in the name of Gomal. Ex.D.5 is the RTC extract
of land bearing Sy.No:23 of Mallegowdanahalli standing in
the name of Narayanamma W/o. Venkatappa measuring to
the extent of 4.20 guntas. Ex.D.6 is the RTC extract of
land bearing Sy.No:22 of Bhaktarahalli measuring to the
extent of 15 acres and 2 guntas standing in the name of
Venkatappa. Ex.D.7 is the RTC extract of land bearing
Sy.No:15/1A of Bhakarahalli measuring to the extent of 3
acres and 18 guntas standing in the name of Venkatappa.
15. To substantiate the above said contention,
complainant is examined as PW-1 and he has reiterated
the complaint averments in his affidavit evidence and he
during his cross-examination has deposed stating that he
is a B.Com degree holder and he is doing Rice wholesale
business from the last 12 years at APMC Market Yard,
Yeshwanthpur and he is the permanent resident of
Bhaktarahalli village and accused is the resident his
adjoining village. He has further deposed that accused is
childhood friend of complainant. He further deposed that
11
CC.No.23756/2017
he is running business in the name of Yashaswini Traders,
APMC Market Yard, Yeshwanthpur. He has denied to the
suggestion that the alleged transaction has not taken place
with accused, hence it is not shown in the IT returns.
Further, he has also denied to the suggestion that
complainant is not having financial capacity to pay an
amount of Rs.4,00,000/- to accused. Further, to
substantiate the above said contention, among all the
documents which have been produced by the complainant
from Ex.P.1 to Ex.P.14, on close scrutiny of Ex.P.6 to
Ex.P.10 which are the statement of account of State Bank
of India, Dasarahalli Branch, Bengaluru standing in the
name of Yashaswini Traders which is owned by the
complainant, who is the Proprietor of the said Traders, it
reveals that as per Ex.P.7 the complainant is having more
than Rs.20,00,000/- in his account as on 29/02/2016 and
in the present case it has been specifically pleaded by the
complainant that he has lent an amount of Rs.4,00,000/-
to the accused on 15/01/2016. This itself goes to show
that the complainant was having the above said amount
with him as per Ex.P.7 statement of account.
12
CC.No.23756/2017
16. Further, on perusal of Ex.P.6 to Ex.P.10
statement of account, it reveals that the financial capacity
of the complainant is healthy. He further denied to the
suggestion that no financial transaction took place with
accused. He has also denied to the suggestion that the
signature of the accused is not appearing at Ex.P.1(a). He
has also denied to the suggestion that the accused is not
entitled to pay an amount of Rs.4,00,000/- in favour of
complainant. Further, this court has referred Ex.P.1
cheque and Ex.P.13 and Ex.P.14 Vakalathnama and Plea
and memo of instructions to the Hand Writing Expert
opinion. The Hand Writing Expert has opined that the
signatures marked at Ex.P.1(a) and in comparison with
admitted signatures marked as S1 to S5 is not expressed
since executions do not afford sufficient identification data.
That means even the expert is also not able to say whether
there is any similarity with the signature appearing at
Ex.P.1(a) and at S1 to S5. Hence, to fix the authorship on
Ex.P.1(a), even the expert has also failed. Under such
circumstances, this court has to give a finding. However, in
the present case it is not in dispute that Ex.P.1 cheque is
13
CC.No.23756/2017
belonging to the accused and it has been admitted by the
accused during his cross-examination. The only contention
taken by the accused is that his signature is not appearing
at Ex.P.1(a). However, he has not given any explanation as
to why Ex.P.1 cheque has come into the custody of the
complainant and he has taken a defence stating that since
accused was the close friend of the complainant and when
he was visiting to the house of the complainant for some
work, at that time accused has taken Ex.P.1 cheque from
the complainant house and he has filled according to his
convenience and has filed a false case. If that is the
defence of the accused, then at least he could have taken
some steps such as lodging of complaint to the Police
station or else by giving representation before the Bank for
stopping the payment of Ex.P.1 cheque.
17. However, to substantiate the above said
contention, the accused who is examined as D.W.1, he has
marked documents from Ex.D.1 to Ex.D.7 and none of the
documents are produced before the court showing that
accused has given representation to the Bank for stop
14
CC.No.23756/2017
payment or else not to honour Ex.P.1 cheque. Ex.D.1 to
Ex.D.7 are the salary slips, loan sanction communication
letter and RTC Extracts and the above said documents
does not come to the aid of the accused to substantiate the
above said defence of the accused that the complainant
has taken Ex.P.1 cheque. Further, in view of the non-
giving of any proper explanation by the accused as to how
Ex.P.1 cheque has gone to the custody of the complainant,
the above said contention taken by the accused that
complainant has taken Ex.P.1 cheque cannot be believed
by this court only for the simple reason that he has not
produced any single iota of documentary evidence to show
that complainant has taken away Ex.P.1 cheque which was
kept in the house of the complainant and also in view of
the Expert also giving the opinion that he has failed to fix
the authorship as to who has signed on Ex.P.1 cheque,
even the expert has failed. However, on close scrutiny of
Ex.P.1(a) and other writings on Ex.P.1 cheque, it appears
to be of the same hand writing. Though the evidence of the
complainant has been rebutted by cross-examining PW-1
and also by leading defence evidence, the above said
15
CC.No.23756/2017
defence evidence is not convincing, trustworthy and
believable. On the other hand, the complaint averments
clubbed with the oral and documentary evidence produced
by the complainant, it reveals that Ex.P.1 cheque has been
issued by the accused towards discharge of debt is
convincing, believable and trustworthy. Under such
circumstances the above said debt which has been
obtained by the accused is a legally enforceable debt and
moreover the accused also admits that Ex.P.1 cheque
belongs to his account. Hence, the complainant has
proved that Ex.P.1 cheque is issued by accused in favour of
complainant for discharge of debt or liability and it is a
legally enforceable debt. Hence, in view of my above
discussion, I answer Point No.1 and 2 in the "Affirmative".
18. The learned counsel for accused has relied upon
the following citations:-
(i) Copy of the order passed in Crl.L.P.No:51/2017 of
Hon'ble High Court of Delhi in M/s. Ceasefire
Industries Ltd V/s. State and others.
The evidence was led by the complainant by
examining its authorized representative
16
CC.No.23756/2017
Mr.D.N.Raju (PW-1). The complainant
having rested its case in both the matters
after the said evidence, statements of the
respondents were received under Section
313 read with Section 281 Cr.P.C and,
thereafter, the Metroplitan Magistrate by
similar Judgments rendered on 03.11.2016
pronounced acquittal.
6. In the opinion of this court, the view taken
by the Metropolitan Magistrate in the two
complaint cases cannot be faulted. The
provision contained in Section 138 of the N.I.
Act makes it clear that it is not every return
of a cheque unpaid which leads to
prosecution of an offence under the said
provision of law. For such purposes, the
cheque must have been returned "unpaid"
either because the amount of money
standing to the credit of that account is
insufficient to honour the cheque or that it
exceeds the amount arranged to be paid
from that account by an agreement made
with the bank.
7. The bank which returned the cheques
unpaid had made it clear that the accounts
had been blocked. It is clear that the
complainant itself was aware that the
accounts had been frozen in terms of
directions by some statutory authority. In
these circumstances, the reasons for return
of the cheques unpaid being not what is
envisaged in Section 138 of the N.I. Act, these
petitions are devoid of merit and, therefore,
dismissed.
The above said citation does not apply to the facts of the
present case since the above said citation is with regard to
17
CC.No.23756/2017
account blocked, whereas as per Ex.P.1 cheque, the above
said Ex.P.1 cheque has been dishonoured for the reasons
"Non-CTS cheque RBI stopped these cheques in 2013 itself
only"
(ii) Copy of Judgment passed by Hon'ble High Court of
Karnataka in Criminal Appeal No.128 of 2013 in Smt.
Deepa V/s. Smt. N. Sudha.
7. Taking into consideration this material
on record in view of the defence raised in
Ex.D4, though there is no specific
contention in the reply notice regarding the
merger of Muscat bank and centurion bank
with HDFC, as on the date of reply it may
be that the respondent is unaware of the
fact. On presentation of the complaint that
defence was taken in the cross examination
after getting the document at Ex.D6.
Therefore, the mere absence of this defence
in the reply notice has no bearing on the
case.
The above said citation does not apply to the facts of the
present case. The above said case is with regard to the
reply notice. However, in the present case Ex- P5 is reply
notice and in the reply notice friendship is admitted by
accused and only contends that there was no necessity of
borrowing of amount by accused, but accused has failed to
18
CC.No.23756/2017
give explanation as to how Ex P1 cheque has come into the
custody of complainant, hence the above said case law also
does not apply to the facts of the present case.
(iii) ILR 2008 KAR 5175 in H.R.Halappa & others V/s.
H.Devaraju.
ON FACTS, HELD, As the plaintiff was
not possessing any valid licence as
required under the Act, Section 11 of the
said Act comes into operation and the
said Section provides that, after the
expiry of six months from the date of
coming into force of the said Act, no court
shall pass decree in favour of a money-
lender in any suit to which the Act
applies unless the court is satisfied that
at the time the loan or any part of it was
advanced, the money lender held a valid
licence. As the plaintiff did not possess a
valid licence as required under section 11
of the Act, the Trial Court could not have
decreed the suit of the plaintff -
Judgment and decree of the Lower
Appellate Court is justified.
The above said citation also does not apply to the facts of
the present case, since in the above said citation, the
accused has not taken defence with regard to the
complainant not having a valid license under Section 11 of
19
CC.No.23756/2017
Money Lenders Act. No such defence is taken by accused
in this case. Hence, the above said citation does not come
to the aid of the accused.
(iv) (2013) 3 Supreme Court Cases 86 in Vijay V/s.
Laxman and another.
Respondent's version also believed that
there was altercation between appellant's
father and respondent one day prior to
date of presentation of cheque, and whole
exercise relating to dishonour of cheque
was to wreck vengence against respondent
instead of utilising cheque in a business
like manner - Held, respondent-accused by
offering a plausible explanation in the face
of unusual facts pleaded by appellant, was
able to displace presumption against him -
Hence acquittal of respondent-accused,
confirmed.
Debt, Financial and Monetary Laws -
Negotiable Instruments Act, 1881 - Ss.
118(a) and 139 - Comparative degree of
onus of proof on complainant and drawer
of cheque - Reiterated, per Thakur.J.
(Supplimenting), standard of proof required
for rebutting the presumption under
Ss.118 and 139 of the NI Act is not as high
as that required of the prosecution and is
rebuttable on the preponderance of
probabilities - Evidence Act, 1872 - Ss.4
and 114 - Rebuttal of presumptions by
accused - standard of proof.
20
CC.No.23756/2017
The above said citation does not apply to the facts of the
present case, though the case of the complainant has been
rebutted by cross-examining PW-1 and also by leading
defence evidence, but it is not convincing and trustworthy
and on perusal of the cross-examination, it reveals that the
accused has issued Ex.P.1 cheque for discharge of debt
which has been obtained by him for the financial
necessities of the accused.
19. The learned counsel for complainant has relied
upon the following citation:-
(i) 2010 (1) Crimes 394 (Del). of Hon'ble Delhi High
Court in Ashok Kumar V/s. Gulshan Kumar.
"(ii) Negotiable Instruments Act, 1881 -
Section 138 - Judgment of acquittal -
Sustainability - Dishonoure of cheque
established - Defence of accused that
cheques were stolen - No stop-payment
notice given to bank - No complaint filed
with the police - Statutory presumption
against the accused - Onus did not shift to
appellants judgments of acquittal passed
by the trial court set aside".
21
CC.No.23756/2017
The above said citation rightly applies to the facts of the
present case. Though the counsel for accused has taken a
defence that Ex.P.1 cheque has been taken by the accused
when he has come to the house of the complainant, he
came to know only after issuance of notice by the
complainant. However, to substantiate the above said
contention that soon after loss of cheque by the accused,
he could have given representation to the bank for stop
payment or else he could have lodged a complaint against
the complainant with regard to taking of the cheque by the
complainant, but no steps are taken by the accused and
the above said defence taken by the accused is without any
documentary evidence.
POINT No.3:-
20. It is the specific contention of the complainant
that accused is known to complainant and hence out of the
said friendship, accused approached the complainant
during the first week of January 2016 for hand loan of
Rs.4,00,000/- to meet his dire necessities. The
22
CC.No.23756/2017
complainant has paid the said amount to the accused by
way of cash on 15/01/2016. In discharge of the said debt,
the accused issued a post dated cheque bearing No:711705
dated 29/06/2017 for a sum of Rs.4,00,000/- drawn on
Corporation Bank, Mahalaxmi Layout Branch, Bengaluru.
When the complainant presented the said cheque through
his Banker State Bank of India, Yeshwanthpur Branch,
Bengaluru, the said cheque was dishonoured for the
reasons "Non-CTS cheque RBI stopped these cheques in
2013 itself only" on 03/07/2017 as per Ex.P.1(b).
Thereafter, complainant issued legal notice to the accused
on 25/07/2017 as per Ex.P.2 and it was sent through
RPAD as per Ex.P.4 postal receipt and the said notice was
duly served on the accused on 26/07/2017 as per Ex.P.4
Postal acknowledgement. Ex.P.5 is the reply notice issued
by the accused to the complainant counsel dated
02/08/2017. Thereafter, the accused has not paid the
cheque amount. Hence, the present complaint is filed on
31/08/2017.
23
CC.No.23756/2017
21. In this regard, it is relevant to peruse Section
138 of the Negotiable Instrument Act, which reads as
under:-
"Dishonour of cheque for insufficiency,
etc., of funds in the account.--Where any
cheque drawn by a person on an
account maintained by him with a banker for
payment of any amount of money to another
person from out of that account for the
discharge, in whole or in part, of any
debt or other liability, is returned by the bank
unpaid, either because of the amount of
money standing to the credit of that
account is insufficient to honour the cheque or
that it exceeds the amount arranged to be paid
from that account by an agreement made with
that bank, such person shall be deemed
to have committed an offence and shall,
without prejudice to any other provision of
this Act, be punished with imprisonment
for [a term which may be extended to two
years], or with fine which may extend to twice
the amount of the cheque, or with both:
22. Provided that nothing contained in this section
shall apply unless--
a) the cheque has been presented to the
bank within a period of six months
from the date on which it is drawn or
within the period of its validity,
whichever is earlier;
b) the payee or the holder in due course of
the cheque, as the case may be, makes
24
CC.No.23756/2017
a demand for the payment of the said
amount of money by giving a notice; in
writing, to the drawer of the cheque,
[within thirty days] of the receipt of
information by him from the bank
regarding the return of the cheque as
unpaid; and
c) the drawer of such cheque fails to
make the payment of the said amount
of money to the payee or, as the case
may be, to the holder in due course of
the cheque, within fifteen days of the
receipt of the said notice.
23. Explanation.--For the purposes of this section,
"debt of other liability" means a legally enforceable debt or
other liability.
24. On going through the said provision of law, it is
clear that in order to establish and to prove the fact that
the accused has committed an offence under section 138
of N.I.Act, the essential requirements i.e., legally
recoverable debt, issuance of the cheque, presentation of
the said cheque within the stipulated period for
encashment, the dishonour of the said cheque and the
issuance of the legal notice within the stipulated period
25
CC.No.23756/2017
calling upon the accused in making the payment of
the said cheque amount is within the stipulated
period are to be proved by the complainant.
25. On going through the facts and circumstances of
the case, it is clear that the accused has issued Ex.P.1
cheque bearing No:711705 dated 29/06/2017 for a sum of
Rs.4,00,000/- but the said cheque is dishonoured for the
reasons "Non-CTS cheque RBI stopped these cheques in
2013 itself only" on 03/07/2017. Thereafter, the
complainant has issued legal notice through his advocate
as per Ex.P.2 on 25/07/2017 and the said notice is sent to
the accused as per Ex.P.3 postal receipt and the said
notice is duly served on the accused on 26/07/2017 as per
Ex.P.4 Postal acknowledgement. The evidence placed on
record shows the failure of the accused to pay the above
said cheque amount within stipulated period as per section
138(c) of the Act. The present complaint has been filed on
31/08/2017 which is well within the period of limitation.
In view of this, the complainant has satisfied the entire
requirements of section 138 of N.I.Act.
26
CC.No.23756/2017
26. On going through the entire oral and
documentary evidence and as observed supra, the
complainant has proved the existence of legally recoverable
debt and issuance of cheque towards discharge of the said
debt and also issuance of the legal notice within stipulated
period and the failure of the accused to make payment of
the said cheque amount within stipulated period. Under
such circumstances, I hold that the complainant has
clearly proved the existence of legally recoverable debt and
also the issuance of cheque towards the discharge of said
debt.
27. When the complainant proved that accused has
issued Ex.P.1 cheque towards discharge of his liability and
is liable to pay the money as provided U/Sec.138 of N.I.Act.
The accused can be punishable with imprisonment for a
term which may be extended upto 2 years or with fine
which may be extended to twice the amount of the cheque
or with both. The accused is liable to pay the cheque
amount of Rs.4,00,000/- in discharge of his liability in
27
CC.No.23756/2017
favour of complainant. Hence in view of my above
discussion, I answer Point No.3 in "Affirmative".
POINT No.4:-
28. In the result I proceed to pass the following:
ORDER
Acting under Section 255(2) of Cr.P.C., the accused is hereby convicted for the offence punishable under Section 138 of N.I. Act.
Accused is sentenced to pay a fine of Rs.4,00,000/- (Rupees Four Lakhs Only) for the offence punishable under Section 138 of N.I. Act. The same shall be paid by the accused within a period of 30 days from the date of this order.
Out of the said fine amount, a sum of Rs.3,90,000/- (Rupees Three Lakh Ninety Thousand Only) has been awarded to the complainant as compensation under Section 357 of Cr.P.C.
In default of payment of fine amount, the accused shall undergo simple imprisonment for 6 (Six) months.
28CC.No.23756/2017 The rest of Rs.10,000/- (Rupees Ten Thousand Only) is ordered to be adjusted to the State as fine.
The cash surety amount of
Rs.4,000/- already deposited by the
accused on 07/02/2018 is forfeited to the State.
Office is directed to supply copy of Judgment to the accused free of cost forthwith.
(Dictated to the Stenographer on computer, print out taken by her is verified, corrected and then Pronounced by me in the Open Court on this the 16th day of March 2022).
(Siddaramappa Kalyan Rao) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
AN NE XU RE List of witnesses examined on behalf of the complainant:
PW.1 : Sri. T. Chandra Shekaraiah.
List of documents exhibited on behalf of the complainant:
Ex.P.1 : Cheque.
Ex.P.1(a) : Signature of the accused.
29
CC.No.23756/2017
Ex.P.1(b) : Endorsement on the back side
of the cheque.
Ex.P.2 : Legal notice.
Ex.P.3 : Postal receipt.
Ex.P.4 : Postal acknowledgement
Ex.P.5 : Reply notice.
Ex.P.6 to Ex.P.10 : Statement of accounts.
Ex.P.11 : VAT Registration certificate.
Ex.P.12 : Lease agreement.
Ex.P.13 : Vakalathnama.
Ex.P.13(a) : Signature of the accused.
Ex.P.14 : Plea.
Ex.P.14(a) : Signature of the accused.
List of witnesses examined on behalf of the accused :
DW.1 : Sri. V. Thimmaiah.
List of documents exhibited on behalf of the accused :
Ex.D.1 and Ex.D.2 : Salary slips of the accused of August 2021 and July 2021. Ex.D.3 : Loan sanction letter. Ex.D.4 to Ex.D.7 : RTC extracts of the accused.
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.30
CC.No.23756/2017 Date:16/03/2022 Complainant - RCR Accused - A Judgment Judgment pronounced in the open court vide separate order) ORDER Acting under Section 255(2) of Cr.P.C., the accused is hereby convicted for the offence punishable under Section 138 of N.I. Act.
Accused is sentenced to pay a fine of Rs.4,00,000/- (Rupees Four Lakhs Only) for the offence punishable under Section 31 CC.No.23756/2017 138 of N.I. Act. The same shall be paid by the accused within a period of 30 days from the date of this order.
Out of the said fine amount, a sum of Rs.3,90,000/- (Rupees Three Lakh Ninety Thousand Only) has been awarded to the complainant as compensation under Section 357 of Cr.P.C.
In default of payment of fine amount, the accused shall undergo simple imprisonment for 6 (Six) months.
The rest of Rs.10,000/- (Rupees Ten Thousand Only) is ordered to be adjusted to the State as fine.
The cash surety amount of Rs.4,000/- already deposited by the
accused on 07/02/2018 is forfeited to the State.
Office is directed to supply copy of Judgment to the accused free of cost forthwith.
XII A.C.M.M., Bengaluru.