Bangalore District Court
Navashakthi Chits Pvt Ltd.,Rep By Raghu ... vs Mohan Kumar K R. S/O Rajendran K on 28 March, 2024
C.C.NO.29084/2021
0
KABC030776492021
Presented on : 25-10-2021
Registered on : 25-10-2021
Decided on : 28-03-2024
Duration : 2 years, 5 months, 3 days
IN THE COURT OF THE XXVIII ADDL. CHIEF
METROPOLITAN MAGISTRATE NRUPATHUNGA ROAD,
BENGALURU CITY
Present:
Soubhagya.B.Bhusher,
BA.,LL.B.,LL.M
XXVIII A.C.M.M, Bengaluru City.
DATED; THIS THE 28 th DAY OF MARCH-2024
C.C.NO.29084/2021
Complainant: Navashakthi Chits Pvt.,Ltd.,
R/by its Legal Executive,
Raghuprasad.G, Age: 44 years,
Office at No.553/7, 1st Floor, 7th Cross,
3rd Main, Ayyappa Temple Road,
Prakash Nagar, Bangalore-560021.
(By Sri.Leelakantaswamy.C.S.,Adv.,)
V/s
Accused: Mr.Mohan Kumar.K.R.S/o Rajendran.K
R/at No.1802/7, 3rd Cross, 3rd Stage,
Prakash Nagar, Bengaluru-560021.
O/at: Sandhya Shree Plastics,
Shed No.B, Sy.No.81/2, Bhadrapura,
Lakkenahalli Post, Solur Hobli,
Tq: Magadi Taluk, Dist: Ramanagar-562127.
(By Sri.Lakshmisha.N.,Adv.,)
C.C.NO.29084/2021
1
:JUDGMENT:
This case arises out of the private complaint filed by the complainant against the accused under section 200 of Cr.P.C., for an offence punishable under section 138 of Negotiable Instruments Act.
2. The case of the complainant's in brief is as under:
It is the case of the complainant is that it is corporate body registered under, the companies act, doing is chits business under the chit funds act. The complainant having number of branches though out of Karnataka and among them is also one, doing the same chit business. The accused is a subscriber in the aforesaid branch and he has entered into a chit group No.N01/TC/002/07 for a value of Rs.50,00,000/- per month of Rs.1,25,000/- the period of 40 months. The accused had participated in the chit auction held on 25.09.2019. In the said auction he bid the chit amount of Rs.15,00,000/-, thereafter he had received prize money of Rs.35,00,000/- on 28.10.2019. Thereafter, he also had executed surety form, on demand promissory note, etc., in favour of the complainant company. It is further stated that in respect of the prize money, which received by the accused, to pay aforesaid chits amount he had issued the cheque bearing No.374515 on 09.04.2021 for a sum of Rs.6,00,000/- drawn on Vijaya Bank, Rajajinagar branch, Bangaluru in favour of the C.C.NO.29084/2021 2 complainant. The complainant presented the said cheque for realization through its banker the Karur Vysya Bank Ltd., Malleshwaram Branch, Bengaluru.
But the said cheque was dishonored on 12.04.2021 for the reasons "Payment Stopped". Thereafter on 27.04.2021 the complainant got issued a legal notice to the accused through its counsel by RPAD calling upon him to pay the cheque amount within 15 days from the date of receipt of the said notice. The said notice returned on 30.04.2021 as Door locked and another address notice was returned as not claimed on 02.05.2021. Inspite of service of the legal notice, the accused neither reply to the notice nor paid the cheque amount to the complainant. As such, the accused has committed an offence punishable under section 138 N.I.Act. Hence, the present complaint came to be filed before this court on 17.07.2021.
3. After the complaint was filed, the cognizance of the offence cited therein was taken and it was registered as P.C.R.No.18575/2021. Sworn statement of the complainant was recorded. Since there were sufficient materials to proceed against the accused, an order was passed on 25.10.2021 to register the case in Register No.III.
4. Thereafter, summons was issued to the accused and he has appeared before the court through counsel and secured bail. He was furnished its C.C.NO.29084/2021 3 necessary papers as complied under section 208 of Cr.P.C,. Thereafter, the plea of the accused was recorded by the court. He has pleaded not guilty and make a defence.
5. The complainant in support of its case, have examined its Legal executive as PW.1 and got marked 10 documents at Ex.P.1 to 10 and closed its side.
6. After closer of the evidence of the complainant, the statement under section 313 of Cr.P.C., was recorded. The accused has denied the incriminating evidence appeared against him. In his defence, the accused examined himself as DW.1 and a document marked at Ex.D.1.
7. Heard the arguments on both the sides and perused the material placed on record.
8. Upon hearing the arguments and on perusal of the material placed on record, the following points arise for my consideration:
1.Whether the complainant proves the existence of legally enforceable debt/liability.?
2.Whether the complainant further proves that the accused had issued the cheque-
Ex.P.1, towards the discharge of the said legally enforceable debt/liability.?
3.Whether the complainant further proves that the cheque-Ex.P.1 was dishonored for the reasons "Payment Stopped" and thereafter the accused had failed to repay C.C.NO.29084/2021 4 the same within the statutory period, inspite of receipt of legal notice.?
4.Whether the accused have thus committed an offence punishable under section 138 of N.I.Act.?
5. What order?
9. My answers 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: In the Affirmative Point No.5: As per final order, for the following:
:REASONS:
10.POINT NO.1 AND 2: These two points are inter-related to each other and finding given on any one point will bearing on the another. Hence, in order to avoid repetition of facts and evidence, I have taken these two points together for common discussion. The case of the complainant is that he was acquainted with the accused. The accused is a subscriber and he has entered into a chit group No.NO1/TC/002/07 for value of Rs.50,00,000/- per month of Rs.1,25,000/- over a period of 40 months. The accused had participated in the chit auction and he bid the chit amount of Rs.15,00,000/-, thereafter he had received prize money of Rs.35,00,000/-. Thereafter, he had executed necessary documents in favour of the complainant company. In respect of repayment of chits amount he C.C.NO.29084/2021 5 had issued the cheque in question in favour of the complainant. The complainant presented the said cheque for realization through its banker. But the said cheque was dishonored for the reasons "Payment Stopped". Thereafter the complainant got issued a legal notice to the accused through its counsel by RPAD calling upon him to pay the cheque amount within 15 days from the date of receipt of the said notice. Inspite of service of the legal notice, the accused neither reply to the notice nor paid the cheque amount to the complainant. As such, the accused has committed an offence punishable under section 138 N.I.Act. Hence, the present complaint came to be filed before this court.
11. In support of the case, the complainant's have examined its Legal executive as P.W.1 and 10 documents were marked at Ex.P.1 to 10. In the chief examination P.W.1 has repeated the contents taken by the complainant in the complaint. Ex.P.1 is the cheque issued by the accused in favour of the complainant on 09.04.2021 for a sum of Rs.6,00,000/-. Ex.P.1(a) is the signature of the accused. Ex.P.2 is the bank memo dated: 12.04.2021 informing the dishonor of the cheque as Payment Stopped. Ex.P.3 is the office copy of legal notice dated: 27.04.2021. Ex.P.4 and 5 are the postal receipts. Ex.P.6 is the postal acknowledgment. Ex.P.7 is the returned postal cover. Ex.P.7(a) is the returned legal notice. Ex.P.8 is the Account statement. Ex.P.9 is C.C.NO.29084/2021 6 the certified copy of the Minutes of meeting. Ex.P.10 is the complaint.
12. In order to prove his defence, the accused examined himself as DW.1 by way of affidavit and a document was marked on his behalf at Ex.D.1. In his chief examination affidavit D.W.1 has repeated the defence taken by him. Ex.D.1 is the ICICI Bank Statement.
13. The accused has taken the defence that the complainant company had taken blank cheque at the time of bidding the chit. Further the complainant have misused the blank cheque and filed this false complaint. Further he has already paid entire amount to the complainant. Further he contended that he has never admitted regarding repayment of the amount as contended by the complainant. The accused in his defence has not disputed Ex.P.1-cheque has been issued by him. He also does not dispute his signature appearing on the said cheque.
14. In order to attract the offence punishable under section 138 of N.I.Act, the complainant is firstly required to prove the existence of legally enforceable debt/liability, for which the cheque came to be issued. The learned counsel for the complainant has argued that from the evidence placed on record, the fact that the accused is a subscriber in the complainant branch and he has entered into a chit value of Rs.50,00,000/-
C.C.NO.29084/2021 7 for the period of 40 months payable at Rs.1,25,000/- per month. The accused had participated in the chit auction and he bid chit amount of Rs.15,00,000/- and he had received prize money of Rs.35,00,000/-. Thereafter the accused had executed necessary documents in favour of the complainant. After receiving the prized money the accused has failed to repay the amount. After the repeated request made by the complainant, the accused has not paid any amount to the complainant. Further argued that the accused in order to repayment of debt/liability had issued the cheque-Ex.P.1 in favour of the complainant. He further argued that the accused has not denied Ex.P.1 being his cheque drawn on his account. When the signature is not disputed, the presumption under section 139 N.I.Act is to be drawn in favour of the complainant. The accused has failed to elicit anything in the cross examination of P.W.1 to disbelieve the said evidence of the complainant case. The defence have failed to rebut the presumption under section 139 N.I.Act. The counsel for the complainant further argued that the accused has failed to produce any believable evidence that he had issued a blank cheque in favour of the complainant for the purpose of security of earlier transaction and also the defence why he has not returned back the same is not clear. He further argued that under section 139 of N.I.Act, there is a C.C.NO.29084/2021 8 presumption that the cheque has been issued for discharge of legally enforceable debt/liability. In the present case, the accused has not disputed Ex.P.1 being his cheque drawn on his account. The said presumption is available to the complainant. Further he has argued that the accused has failed to prove the very fact that the cheque was given to the complainant for the purpose of security of earlier transaction and it was blank when it was given to the complainant. Moreover, under section 118 of N.I.Act, there is a presumption that the Negotiable Instruments is drawn on the date, for the amount and in favour of the person as shown in it. It is for the accused to rebut the said presumption. But in the case on hand no such evidence forthcoming. It was also argued by him that as per the defence by the accused that he had given a blank cheque to the complainant. As such, very defence of the accused is not believable.
15. The learned counsel for the complainant further argued that the accused has not produced any documentary evidence to prove his defence. Upon careful perusal of the entire evidence of records both oral and documentary evidence the complainant have proved their case. It was further argued that the accused seriously disputed that the complainant company collected blank cheque and they have misused the same. However, he has miserable failed to C.C.NO.29084/2021 9 prove the said fact. It is specific case of the accused that he has already paid entire amount to the complainant. The complainant have misused the cheque. Further the materials available on record clearly established that the accused admitted the issuance of cheque to the complainant. The initial burden is on the complainant to prove that the cheque was issued in favour of the complainant towards payment of amount, then onus shifts upon the accused to prove his defence and it is for the accused to rebut the legal presumption enumerated under section 138 of Negotiable Instruments Act. As per presumption the cheque was issued for discharge of legal liability and it is for the accused to rebut the said presumption by adducing the cogent and convincing evidence. It was further argued that under facts and circumstances of the case the complainant have proved that the accused had issued the cheque in question in favour of the complainant for repayment of amount. On the contrary, the accused utterly failed to prove his probable defence that he had issued a blank cheque for the purpose of security of earlier transaction. It is pertinent to note that the accused has admitted that he had issued the cheque produced at Ex.P.1 and the accused has not produced any evidence to prove his probable defence. Under these circumstances the complainant have established their case in compliance of 138 of the C.C.NO.29084/2021 10 N.I.Act. Hence, he prays to convict the accused.
16. The leaned counsel for the accused has argued that there was no legally enforceable debt/liability to the complainant from the accused for which the cheque-Ex.P.1 was issued. Further argued that the accused had issued a blank cheque to the complainant for the purpose of security of earlier transaction. Further argued that the accused has already paid entire amount to the complainant. When the accused has paid entire amount to the complainant, then question of issuance of the cheque does not arise at all. The complainant company misused the security cheque and filed a false case against the accused. In order to attract the offence punishable under section 138 of N.I.Act, the complainant is firstly required to prove the existence of a legally enforceable debt/liability, for which the cheque came to be issued. The complainant created all the documents and filed this false complaint against the accused. Therefore, from the evidence placed on record, the very due amount of the accused is not clearly made out whereas the accused is succeeded in rebutting the presumption available under section 139 of N.I.Act regarding existence of legally enforceable debt/liability.
17. The learned counsel for the accused has filed written arguments. In his written argument it is submits that the legal executive Mr.Raghu Prasad.G entered C.C.NO.29084/2021 11 witness box and deposed his evidence as PW.1 by sworn statement i.e., affidavit in lieu, in which, PW.1 deposed and reiterated the facts of the case. In support of the evidence of the complainant the accused had furnished the statement of account as Ex.P.8 i.e., got marked Ex.P.1 to 8. Ex.P.1 is the cheque, Ex.P.1(a) is the signature of the accused. Ex.P.2 is the Bank memo, Ex.P.3 is the legal notice dated: 27.04.2021. Ex.P.4 and 5 are the two postal receipts, Ex.P.6 is the postal acknowledgement. Ex.P.7 is the returned postal cover. Ex.P.7(a) is the legal notice which inside the return cover. Ex.P.8 is the account statement/extract. Ex.P.9 is the minutes of meeting and Ex.P.10 is the complaint. Further submits that the accused has been summoned vide order of this court, after service of summons the accused has appeared before the court and has been enlarged on bail and the substance of the accusation has been read over to the accused, to which, the accused has pleaded not guilty and has further pleaded to set the motion of trial. Accordingly, the accused has cross examined PW.1 and makes an interesting reading.
18. PW.1 as stated in the cross examination that:
ಪರರದ ಸಸಸಸಯಲ ರರದರರ ಚಚಟ ಸದಸಸರದರ ಅವರ ಜರತ ಚಟ ಅಗಗಮಸಟ ಮಡಕರಳಳ ಳ ತತಚವ ಎಸದರ ಸರ. ಸದರ ಚಟ ನ ನನಳ ನಸರಲಯಕಕ ಹಜರಸಲಲ ಎಸದರ ಸರ. ಚಟ ಅಗಗಮಸಟನಳ ಅಗಗಮಸಟ ಆಗಳವ ಸಮಯದಲ ಬಚರ ದಖಲಗಳಗರ ಸಹ ಸಹ C.C.NO.29084/2021 12 ಪಡಯಳತತಚವ ಎಸದರ ಸಕಯಳ ಕವವಸ ದಖಲಗಳಗ ಸಹ ಪಡಯಳತತಚವ ಎಸದಳ ನಳಡಯಳತತರ. ನವಸಬರ 2018 ರಲ ಚಟ ಅಗಗಮಸಟ ಆಗರಳತತದ, ಆದರ ನಖರವದ ದನಸಕ ನನಪಲಲ. ದದ 09-04-2021 ರಸದಳ ಆರರಚಪಯಳ ಪ ಗಶನತ ಚಕಕನಳ ನ ನಮಗ ನಚಡರಳತತರ. ಚಕಕನಳ ನ ಕರಡಳವ ನ ಪವತ ಮಡಲಲ.
ಸಮಯದಲ ಆರರಚಪಯಳ ರವದಚ ಹಣವನಳ ಆರರಚಪ ಕಡಯಸದ ಪಡದ ಡಮಸಸಡ ಪಗಮಸರ ನರಚಟಳ ಮತಳತ ಸರ ನ ನನಳ ನಸರಲಯಕಕ ಹಜರಸಲಲ ಎಸದರ ಸರ. ಪ ಗಶತ ಸ ರಟ ಫರಸನಳ ನ ಚಕಳ ಕ ಆರರಚಪಯಳ ಹಳಯ ಚಚಟಯ ವಸವಹರಕಕ ನಚಡದ ಚಕಳ ಕ ಇರಳತತದ ಎಸದರ ಸರಯಲಲ. ನನಗ ಬಸಸಕಸಗ ವಸವಹರದ ಬಗಗ ಮಹತ ಇದ ಎಸದರ ಸರ. ಆರರಚಪಯಳ ನಚಡದ ಪ ಗಶನತ ಚಕಳ ಕ ವಜರ ಬಸಸಕಗ ಸಸಬಸಧಸದ ಚಕಳ ಕ ಎಸದರ ಸರ. ಸದರ ವಜರ ಬಸಸಕ 2017 ರಲ ಬಸಸಕ ಆಪ ಬರರಚಡಕಕ ವಲಚನಗರಸಡರಳವ ವಷಯ ನನಗ ಗರತತರಳತತದ. 2017 ರಲ ವಜರ ಬಸಸಕ ವಲಚನಗರಸಡ ನಸತರ 2021 ನ ಪಡಯಳವದಲಲ ಎಸದಳ ರಲ ವಜರ ಬಸಸಕಗ ಸಸಬಸಧಸದ ಚಕಕನಳ ನರಕರಣ ಮಡದರ ಎಸದರ ಸಕಯಳ ಆರರಚಪಯಳ ಚಲತಯಲ ನ ಬಸಸಕಗ ಹಜರಸಬಹಳದಳ ಎಸದಳ ಹಚಳದದರಸದ ಸದರ ಇರಳತತದ, ಚಕಕನಳ ಚಕಕನಳ ನ ಪಡದರಳತತಚವ. ಆರರಚಪಯಳ ಕಚವಲ ಸಹ ಮಡದ ಖಲ ಚಕಕನಳ ನ ಪರರದ ಸಸಸಸಗ ನಚಡದದರಳ ಎಸದರ ಸರಯಲಲ. ನಪ.1 ರಲ ದನಸಕವನಳ ನ ಹರರತಳಪಡಸ ಉಳದ ಬರವಣಗ ಮಳದಗತವಗದ ಎಸದರ ಸರ . ನಪ-1 ರಲ ಸಹಗ ಬಳಸದ ಶಹ ಮತಳತ ದನಸಕ ಬರಯಲಳ ಬಳಸದ ಶಹ ಬಚರ ಬಚರ ಇವ ಎಸದರ ಸರಯಲಲ. ಆರರಚಪಯಳ ಪಗಪಜಜ ಹಣ ಪಡದ ನಸತರ ಸಸಲಲ ಕಸತನ ಹಣವನಳ ನ ಪವತಸದರ ಎಸದರ ಸರ. ನಪ.8 ರ ಪ ಗಕರ ಆರರಚಪಯಳ 40 ಕಸತಳಗಳಲ 23 ಕಸತಳಗಳ ಹಣವನಳ ನ ಪವತಸದರ ಎಸದಳ ನಮರದಳ ಇದ ಎಸದರ ಸರ. ನಪ.8 ರಲ ದದ 13.03.2021 ರವರಗ ಮತ ತ ಕಸತನ ಹಣ ಪವತಸದ ಬಗಗ ನಮರದಳ ಇದ ಎಸದರ ಸಕಯಳ ಪ ಗಕರಣ ದಖಲಸಳವವರಗ ಅಷಳ ನ ಪವತಸದದರಸದ ಅಲಯವರಗ ಷ ಹಣವನಳ ಮತ ತ ನಮರದಳ ಇರಳತತದ ಎಸದಳ ನಳಡಯಳತತರ. ಪ ಗಶನತ ಚಕಳ ಕ ದದ 12-.04.2021 ರಸದಳ ನಪ.2 ರಸತ ಹಸದರಳಗದ ಎಸದರ ಸರ. ದದ 12.04.2021 ರಲ ಆರರಚಪಯಳ ರರ.93,750/- ಹಣವನಳ ನ ಪವತಸದರ C.C.NO.29084/2021 13 ಎಸದರ ಸರ. ದದ 27.04.2021 ರಲ ನಮಮ ವಕಚಲರ ಮರಲಕ ನಚಡದ ನರಚಟಸನಲ ಆರಳ ಲಕ ಹಣವನಳ ನ ನಮರದಸ ನರಚಟಸಳ ನಚಡದವ ಎಸದರ ಸಕಯಳ ಪಸಚರ ಹಣವನಳ ನ ಸಚರಸ ಅಷಳ ಷ ಪವತಸಳವದಳ ಬಕ ಇರಳತತದ ಎಸದಳ ನರಚಟಸಳ ನಚಡರಳತತಚವ ಎಸದಳ ನಳಡಯಳತತರ. ನಪ.3 ರಲ ಪಸಚರ ಪಚಮಸಟ ಬಗಗ ನಮರದಳ ಇಲಲ ಎಸದರ ಸರ. ದದ 12.04.2021 ರಲ ಆರರಚಪಯಳ ಪವತಸದ ರರ.93,750/- ಹಣದ ಬಗಗ ನಪ.3 ರಲ ನಮರದಳ ಇಲಲ ಎಸದರ ಸರ. ದದ 27.04.2021 ರ ನಸತರ ಆರರಚಪಯಳ ಪರರದ ಸಸಸಸಗ ರರ.7,50,000/- ಹಣವನಳ ನ ಪವತಸದರ ಎಸದರ ಸರಯಲಲ.
19 . ಚಕಳ ಕ ಅಮನಸಗರಸಡ ನಸತರದಸದ ಆರರಚಪಯಳ ದದ 12.04.2021, 30.04.2021, 31.07.2021, 31.08.2021, 29.11.2021, 06.12.2021, 31.12.2021 ರಲ ತಲ ರರ. 93,750/- ರಸತ ಹಣವನಳ ನ ಪರರದ ಸಸಸಸಗ ಪವತಸದರ ಎಸದರ ಸರಯಲಲ. ಆರರಚಪಯಳ ಈ ನಸರಲಯದಸದ ಜಮಚನಳ ಪಡದಳಕರಸಡ ನಸತರ ದದ 02.01.2023, 08.03.2023, 06.07.2023 ರಲ ಒಟಳ ಷ ರರ.1,75,000/- ಹಣವನಳ ನ ಪರರದ ಸಸಸಸಗ ಪವತಸದರ ಎಸದರ ಸರ. ಆರರಚಪಯಳ ಪರರದ ಸಸಸಸಗ ಚಕಳ ಕ ಅಮನಸಗರಸಡ ನಸತರದಸದ ದದ 06.07.2023 ರವರಗ ಒಟಳ ಷ ನ ಪವತಸದರ ಎಸದರ ಸರಯಲಲ. ಸಕಯಳ ರರ.8,31,250/- ಹಣವನಳ ಮಳಸದಳವರದಳ ಕಚವಲ ರರ.1,75,000/- ಹಣವನಳ ನ ಮತ ತ ಪವತಸದರ ಎಸದಳ ನಳಡಯಳತತರ. ಆರರಚಪಗ ಪ ಗತ ತಸಗಳಳ ರರ.31,250/- ರಸತ ಡವಡಸಡನಳ ನ ಪಡಯಳತತರ ಎಸದರ ಸಕಯಳ ಪ ಗತ ತಸಗಳಳ ರರ.31,250/- ಡವಡಸಡ ಬರಳವದಲಲ, ಅದರಲ ಹಚಳ ಚ ಕಡಮ ಆಗಳತತದ, ಅದಚ ರಚತ ನ ಕರಡಳವದಲಲ ಎಸದಳ ಡಫಲಷರ ಆದರ ಅಸತಹವರಗ ಡವಡಸಡಹಣವನಳ ನಳಡಯಳತತರ. ನಪ.8 ರಲ ಆರರಚಪಗ ಪ ಗತ ತಸಗಳಳ ರರ.31,250/- ಡವಡಸಡಹಣ ಕರಟಷ ಬಗಗ ನಮರದಳ ಇದ ಎಸದರ ಸರ. ಚಟಫಸಡ ಕಯದ ಪ ಗಕರ ಡಫಲಲಷರ ಆದರ ಅದಕಕ ದಸಡವನಳ ನ ವದಸಬಹಳದಚ ಹರರತಳ ಡವಡಸಡ ಹಣವನಳ ನ ಕಡತಗರಳಸಲಳ ಬರಳವದಲಲ ಎಸದರ ಸಕಯಳ ಚಟ ಅಗಗಮಸಟ ನಲ ಆ ಬಗಗ ನಮರದಳ ಇರಳತತದ ಎಸದಳ ನಳಡಯಳತತರ. ದರರನಲ ಮತಳತ ನನನ ಸಕ ಪ ಗ ಮಣ ಪತ ತದಲ C.C.NO.29084/2021 14 ಆರರಚಪಯಳ ಎಷಳ ಷ ಕಸತಳಗಳ ಹಣವನಳ ನ ಪವತಸಳವದಳ ಬಕ ಇರಳತತದ ಎಸದಳ ನಮರದಸಲಲ ಎಸದರ ಸರ. ಅದಚ ರಚತ ಆರರಚಪಯಳ ಷ ಇರಳತತದ ಎಸದಳ ಕಣಸಲಲ ಪವತಸಬಚಕದ ಅಸಲಳ ಮತಳತ ಬಡಜ ಎಷಳ ಎಸದರ ಸರ. ಪರರದ ಸಸಸಸಯಲರಳವ ರಕವರ ಏಜಸಟರ ರವರಳ ಚಚಟ ಸದಸಸರ ಬಳಗ ಹರಚಗ ಅವರಸದ ಕಸತನ ಹಣವನಳ ನ ಪಡದಳಕರಸಡಳ ಬರಳವ ಪದದತ ಇರಳತತದ ಎಸದರ ಸರ. ರಕವರ ಏಜಸಟ ರವರಳ ಹಣ ಪಡಯಲಳ ಕ ಮತಳತ ಡ.ಡಯನಳ ಹರಚದಗ ಚಕಳ ನ ಬಟಳ ಷ ನಗದಳ ರರಪದಲಯರ ಸಹ ಹಣವನಳ ನ ಪಡದಳಕರಸಡಳ ಬರಳತತರ ಎಸದರ ಸರ. ಆರರಚಪಯ ಕಡಯಸದಲರ ಸಹ ಪರರದ ಸಸಸಸಯ ರಕವರ ಏಜಸಟರ ರವರಳ ನಗದಳ ರರಪದಲ ಹಣ ಪಡದಳಕರಸಡಳ ಬಸದದರ ಎಸದರ ಸಕಯಳ ಆ ಬಗಗ ನನಗ ಗರತತಲಲ, ಪರಶಚಲಸ ಹಚಳಳತತಚನ ಎಸದಳ ನಳಡಯಳತತರ. ಆರರಚಪಯಳ ಪಡದಳಕರಸಡ ಚಚಟ ಅವಧ ಮಳಕತಯಗರಸಡದ ಎಸದರ ಸರ. ಆರರಚಪಯ ವರಳದದ ಇದಚ ಚಚಟಗ ಸಸಬಸಧಸದಸತ ಡಪಸಟ ರಜಸಷಗರ ಆಫ ಚಟಟ ರವರ ಬಳ ಅವಡರ ನಳ ನ ಪಡದಳಕರಸಡದವ ಎಸದರ ಸರ. ಸದರ ಅವಡರ ನ ಮಚರಗ ಸ.ಸ.ಎಚ-30 ನಸರಲಯದಲ ಅಮಲಜರ ಪ ಗಕರಣ ದಖಲಸದವ ಎಸದರ ಸರ. ಡಪಸಟ ರಜಸಷಗರ ಆಫ ಚಟಟ ರವರ ಬಳ ಪಡದ ಅವಡರ ನಲ ಈ ಪ ಗಕರಣದ ಚಕಕನ ನ ಕಡತ ಮಡಲಲ ಎಸದರ ಸರ. ಸದರ ಮತತ ಆ ಅವಡರ ನಲ ಮತತವನಳ ಸಚರಕರಸಡದ ಎಸದರ ಸರ. ನಪ.9 2012 ಕಕ ಸಸಬಸಧಸದ ದಖಲ ಎಸದರ ಸರ. ನಪ.9 ರಲ ಆರರಚಪಯ ವರಳದದ ಪ ಗಕರಣ ದಖಲಸಳವ ಬಗಗ ನಖರವಗ ನಮರದಳ ಇಲಲ ಎಸದರ ಸರ. ನಪ.9 ನಳ ನ ಹರರತಳಪಡಸ ಆರರಚಪಯ ವರಳದದ ಪ ಗಕರಣ ದಖಲಸಲಳ ಪರರದ ಸಸಸಸಯವರಳ ನನಗ ರವದಚ ಜ.ಪ.ಎ ಮತಳತ ಆಥರವಜಚಶನ ನಚಡಲಲ ಎಸದರ ಸರ.
ದ ಅದರ ಮಳಸದನ ಸಷಚಟಮಸಟನಳ ನಪ.8 ದದ 13.03.2021 ರವರಗ ಇದಳ ನ ನಸರಲಯಕಕ ಹಜರಸಲಳ ನನಗ ತರಸದರ ಇಲಲ ಎಸದರ ಸರ. ಡಪಸಟ ರಜಸಷಗರ ಆಪ ಚಟಟ ರವರ ಬಳ ಪಡದ ಅವಡರ ಬಗಗ ಈ ಪ ಗಕರಣದಲ ನಮರದಳ ಇಲಲ ಎಸದರ ಸಕಯಳ ಆ ಪ ಗಕರಣವ 2023 ರಲ ದಖಲಗದದರಸದ ಈ ಪ ಗಕರಣದಲ ನಮರದಸಲಲ ಎಸದಳ ನಳಡಯಳತತರ.
20. It is further submits that the complainant have C.C.NO.29084/2021 15 not lead any additional evidence in support of his case and after closer of the complainant evidence the accused himself have examined as DW.1 and deposed that, after dishonor/return of the said Ex.P.1 cheque he had paid a sum of Rs.8,31,250/- to the complainant which included the cheque amount along with other charges. The said payment was made to the complainant on the assurance to withdraw the above complaint but the complainant has failed to keep on their words. In this submission or deposition, the accused have produced the bank statement which clear reflects the payment of the amount to the complainant after dishonor of the cheque and the said bank statement has been marked as Ex.D.1. The complainant counsel has cross examined the accused and not raised any question regarding the payment nor Ex.D.1. He has raise points for consideration on behalf of the accused. a). PW.1 admits that chit agreement, demand promissory note and surety form has been executed by the accused bu the same has not been produced by the complainant. b). PW.1 as admitted that after dishonor of Ex.P.1 cheque the accused have made some payment and he undertook to produce up to date statement of account but the same has not been produced. c). PW.1 in his cross examination further deposed that, he has filed a case before the Registrar of chit in which the Ex.P.1 cheque amount C.C.NO.29084/2021 16 has also been included and he have completely suppressed the filing of the case before the Registrar of chit and have already obtained in the decree. d). PW.1 in his cross examination further deposed that, the said chit has been closed and have also suppressed the payment made by the accused after return of the Ex.P.1 cheque. e). It is relevant to note that the complainant has not produced any document to show what action had taken till date of issuance of cheque as per Ex.P.1 against the accused. f). Though PW.1 in his cross examination has deposed that the filed recovery suit against the accused before registrar of chit and obtained decree and not produced any document to show the same. Therefore, in the absence of documentary evidence this court is not inclined to accept the version of PW.1 in this regard. g). That the accused have cleared all the dues which he had to be paid for the prized chit for which the DW.1 has produced the Ex.D.1 bank statement and receipt of the same in denied by the PW.1 in cross examination which shows the conduct that to for the receipt of amount through account transfer. h). Ex.P.9 is not as per law PW.1 have not produced any GPA nor authorization letter to file and depose in the above case, Ex.P.9 is of 2012 but the chit auction have been taken in the year 2019 and there is no particular direction nor instruction to PW.1 to act upon the C.C.NO.29084/2021 17 accused in the above case.
21. It is further submits that the Apex court has come down heavily on misuse of provisions of N.I.Act and more particularity on section 138 which fetters the hands to the court to largely draw a presumption in favour the complainant. The Apex court has settled the law in the catena of judgments that the existence of legally enforceable debt/liability has to prima fascia to be proved to be complainant and that such a debt to be legally enforceable debt being a debt in true sense in the instance case the complainant has failed to prove the same. The act clearly lays down presumptions in favour of the complainant with regard to issuance of the cheque by the accused towards the discharge of his liability in favour of the complainant under the scheme of the act, the onus is upon the accused to rebut the presumptions in favour of the complainant by raising a probable defence. The facts narrated above clearly demonstrate that the complainant have got no legally enforceable debts from the accused. It is a trite of law that once there is a dispute with regard to the financial transaction itself, the standard of proof in so far as the prosecution is concern should be a case of proof of guilt beyond all reasonable doubt since the one of the accused is only a mere preponderance of probability. Further it is clear from the evidence on record, the complainant has miserably failed to establish the C.C.NO.29084/2021 18 transaction in question as claimed by him and on the contrary, the accused has been successful in eliciting the serious doubtful circumstances in the case of the complainant and in such circumstances, the benefit of such doubts need to be extended to the accused. The case of the complainant is liable to be dis-believed, since the same suffers from serious omissions, contradictions and suspicious circumstances and on the other hand, the accused has probabalized his defence and as such, his defence is sufficient to rebut the presumption available in favour of the complainant under section 118 and 139 of the N.I.Act. The complainant has filed this complaint for illegal gain from the accused by misusing the cheque. Hence, he prays to acquit the accused, by dismissing the complaint filed by the complainant with costs.
22. In the case on hand the complainant and the accused having some transaction has not been seriously disputed by the accused. Further the accused has not seriously disputed he had issued the cheque in question in favour of the complainant. It is not disputed that the complainant is a private limited chits company and the accused was a subscriber of the complainant company and he had issued the cheque-Ex.P.1. Whereas, the accused has contended that he had given signed chaque to the complainant for the purpose of security of earlier transaction. When he had given C.C.NO.29084/2021 19 cheque, which was blank. The accused has specifically denied having debt/liability had issued the cheque- Ex.P.1 on 09.04.2021 towards the discharge of any debt/liability. He contends that the blank cheque given by him to the complainant for the purpose of security of earlier transaction as was misused by the complainant and the false complaint was filed.
23. In order to attract the offence punishable under section 138 of N.I.Act, the main ingredients of the existence of the legally enforceable debt/liability, for which the cheque drawn on the account of the accused was given for discharge of the same, are to be proved. The complainant's in order to prove its case, have examined its Legal Executive as PW.1 and 10 documents were marked at Ex.P.1 to 10. In chief examination, P.W.1 has repeated the averments made by the complainant in the complaint. In the present case, the accused has not disputed Ex.P.1 being his cheque drawn on his account. The said presumption is available to the complainant.
24. As per the section 139 of N.I.Act, there is a presumption regarding the existence of legally enforceable debt/liability. Such presumption is rebuttable presumption and it is opinion to the accused to raise defence discharging the existence of a legally enforcible debt/liability. In the case on hand also the accused has disputed the existence of legally C.C.NO.29084/2021 20 enforceable debt/liability, for which cheque-Ex.P.1 was issued. In order to prove his defence, the accused has failed to produce any documentary evidence before this court except Ex.D.1. PW.1 during his cross- examination has specifically denied the suggestions made to him that Ex.P.1-cheque was issued in favour of the complainant company for the purpose of security of earlier transaction and same was blank at the time of issuing the same.
25. Since, the presumption under section 139 of N.I.Act is a rebuttable presumption the accused is firstly required to produce some probable evidence to rebut the same. Though in the criminal cases, the standard of the proof required for the accused is not so strict as required for the complainant to prove the case. Further the accused has to produce some probable evidence, which creates doubt about the existence of legally enforceable debt/liability. In the present case, as per the defence taken by the accused is that he had given a blank cheque to the complainant company for the purpose of security of earlier transaction. Except, said defence, he has not produced any materials to prove such defence. If he had given a blank cheque to the complainant, what prevented the accused to file the complaint immediately after the alleged illegal act made by the complainant. Further what prevented the accused to file the complaint against the complainant C.C.NO.29084/2021 21 for misusing of the said cheque. On which date he came to knew about the alleged illegal act of the complainant, he did not whisper about on what date he came to know the alleged cheque illegally misused by the complainant. Admittedly the accused is having knowledge of the financial transaction, why he has given blank cheque to the complainant without anticipating the consequence is not explained by him. So also, he has not stated anything as to what steps he took to receive back the blank cheque. Moreover, immediately after the alleged blank cheque misused by the complainant he has not lodge complaint before concerned police station. No steps have been taken to receive back the blank cheque, after he came to know about the same.
26. Once issuance of cheque and signature are admitted, the statutory presumptions would arise under sections 118 and 139 of the N.I.Act that the cheque was issued by the drawer for legally payable debt/liability and for valid consideration. The Hon'ble Supreme Court has held in the case of Rangappa V/S Mohan, reported in 2010 AIR SCW 296, the presumption that the cheque was drawn in discharge of legally recoverable debt is a presumption of law that ought to be raised in every case, though, it is a rebuttable presumption. Of course, the presumption under section 139 and 118 of the N.I.Act are rebuttal C.C.NO.29084/2021 22 presumption. Further it is also held that mere plausible explanation by the drawer is not sufficient and proof of that explanation is necessary. The principle of law laid down in the above decision is applicable to the facts of this case. In the instant case, since the complainant is in possession of the cheque-Ex.P.1 the court has to draw the initial presumption that he is the payee of that cheque. Once the initial burden is discharged by the complainant, the onus shifts on the accused to rebut the complainant's case.
27. Further the accused has taken contention that the cheque was given as a security of earlier transaction. Hence, offence under section 138 of N.I.Act is not attracted. In this regard once issuance of cheque and signature are admitted, the statutory presumptions would arise under sections 138 of N.I.Act that cheque was issued by the drawer for legally payable debt/liability and for valid consideration. In the case of Sripati Singh (Since deceased) through his son Gaurav Singh V/s State of Jarkhand and another, reported in 2021 SCC online SC 1002 the Hon'ble Supreme court has categorically held that; once the cheque is issued as security for the loan and if the loan is not paid back then if the cheque is dishonored which attract 138 of N.I.Act. The principle of law laid-down in the above decision is applicable to the facts of this case. Therefore, the contention of the accused cannot C.C.NO.29084/2021 23 be acceptable that the cheque was given only for security purpose, without producing any documents, then he has to pay the cheque amount when it is presented for encashment which is legally recoverable debt.
28. In the case of K.S.Ranganatha V/s Vittal Shetty, reported in 2021 SCC Online SC 1191, the Hon'ble Supreme Court held that once the cheque is admitted to be that of the accused, the presumption envisaged in section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt/liability. It is further held that the position of law makes it crystal clear that when a cheque is drawn out and is relied upon by drawee, it will raise a presumption that it is drawn towards a consideration which is a legally recoverable amount; such presumption of course, is rebuttable by proving to the contrary. The onus is on the accused to raise a probable defence and the standard of proof for rebutting the presumption is on preponderance of probabilities.
29. In the case of Kalamani Tex V/s P. Balasubramanian, reported in (2021) 5 SCC 283 has observed that section 138 read with 139 of N.I.Act, C.C.NO.29084/2021 24 presumption as to legally enforceable debt, effect of admission regarding signature on the cheque, in such situation, court held that required to presume that the cheque was issued as consideration for legally enforceable debt.
"13. Adverting to the case in hand, we find on a plain reading of its judgment that the trial court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under section 118 and 139 of N.I.Act. The statute mandates that once the signature(s) of an accused on the cheque/Negotiable Instruments are established, then these "reverse onus"
clauses become operative. In such situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. This point of law has been crystallized by this court in Rohitbhai Jivanlal Patel V/s state of Gujrat, (2019) 18 SCC 106, Para 18: (2020) 3 SCC (Civil) 800:
(2020) 3 SCC (Cri) 575) in the following words:
(SCC pp. 120-21, para 18)".
"18. In case at hand, even after purportedly drawing the presumption under section 139 of the N.I.Act, the trial court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want to examination of relevant witness who allegedly extended him money for advancing it to the accused. This approach of the trial court had been at variance with principle of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the appellant-accused".
C.C.NO.29084/2021 25
30. In the case of Electronics Trade & Technology Corporation Ltd., V/s Indian Technology & Engineers (Electricals)(P) Ltd., & Anr, reported in 1996 (2) SCC 739, it is observed that instructions for stoppage of payments also attracts Section 138 of N.I.Act.
31. In the present case also, as the accused never disputed his signature and did not deny issuing cheque from the account of the accused. The accused did not dispute cheque return memo also. The cheque was returned for the reasons Payment stopped. Thus, the act clearly lays down presumptions in favour of the complainant with regard to the issuance of the cheque by the accused towards the discharge of the liability in favour of the complainant. Further under scheme of the Act, the onus is upon the accused to rebut the presumption in favour of the complainant by raising a probable defence. Such being the legal position, it would be pertinent to refer to the defences raised by the accused to rebut the presumptions in favour of the complainant in this case.
32. Applying the above said principles to the present case and before considering the point whether the accused succeeded to rebut the presumptions and to establish his defence to the extent of probabilities, it is just and necessary to accumulate undisputed facts in this case.
33. It is not in dispute that bounced cheque C.C.NO.29084/2021 26 belongs to the bank account of the accused. It is also not in dispute that signature appearing on the bounced cheque is the signature of the accused. It is also not in dispute that the cheque presented by the complainant came to be dishonored by the banker of the accused for the reason stated in the dishonor memo. To consider whether the accused succeeded to rebut the presumption and established the defence to the extent of probabilities, the accused has not produced any documents in this regard. It was also contended by the accused that he had given a blank cheque to the complainant for the purpose of security of earlier transaction. The said blank cheque was misused by the complainant. But the accused has failed to produce any believable evidence before this court.
34. In the defence there is no ill-will between the complainant and the accused. Hence, misuse of cheque and filing a false case is not possible. The accused admittedly having knowledge of business. It is implies, he is conversant with financial transaction. If the complainant misused the said cheque and had not return the same, inspite of collecting cheque leaves from him, as a prudent man, the accused should have inquired with the complainant and demanded to return that cheque. No ordinary prudent man would keep quite in such circumstances, without taking any steps. The conduct of the accused is very unusual, because he did C.C.NO.29084/2021 27 not take any legal action against the complainant, even after filing of the complaint based on Ex.P.1-cheque. Further the accused had issued a notice to his banker to stop payment, but the accused has not issued a legal notice to the complainant regarding stop payments to the bank or he could have given complaint to the police station immediately. No such steps were taken by the accused. He simply makes a bald allegation of misuse of the security cheque against the complainant. It appears, just to escape from his legal liability, he has taken such contentions without any valid basis.
35. Moreover, the complainant have got issued a legal notice to the accused by registered through its counsel calling upon the accused to make repayment of amount to the complainant. Before a person is held to be guilty of an offence punishable under section 138 of N.I.Act, the complainant have to proved the compliance of the requirement under section 138 of N.I.Act. It is not in dispute that Ex.P.1 is the cheque drawn on account of the accused. In view of the above discussions, it is also held to be proved that it was drawn for discharge of legally enforceable debt/liability. From the evidence of P.W.1 and also cheque return memo at Ex.P.2 it is established that the cheque was dishonored for the reasons "Payment stopped''. A legal notice being issued as per Ex.P.3 within one month C.C.NO.29084/2021 28 from the date of dishonour of the cheque is also not in dispute. In the case on hand the accused has not seriously disputed regarding notice sent by the complainant on his address. But, the accused failed to reply the notice, immediately after he received the demand notice. Thereby, he could have asserted him defence at an earliest available opportunity. In the case on hand the notice is sent to the accused at his address. When the accused has not seriously disputed, the notice sent to the correct address is sufficient compliance under section 138 of N.I.Act. Therefore, there is sufficient proof of due service of the legal notice.
36. It is not the contention of the accused that thereafter he has paid the cheque amount within stipulated time of 15 days on receiving the notice. Therefore, in the case on hand on perusal of the evidence placed on record, all the essential ingredients under section 138 N.I.Act, have been complied with. As the accused has not paid the cheque amount within stipulated period and failed to give reply to the notice, as such the accused has committed an offence punishable under section 138 of Negotiable Instruments Act. The present complaint is filed within the period of one month after the accused failed to repay the cheque amount. Even he did not whisper anything about the defence while his plea was recorded C.C.NO.29084/2021 29 under section 251 of Cr.P.C. In view of judgment of Hon'ble Supreme Court in Indian Bank Association V/s Union of India and others, (2010 (5) SCC 590), it is clear that while recording the plea under section 251 of Cr.P.C., it becomes the duty of the accused to state whether he has any defence to make or he pleads guilty. Thus, unlike under section 240 of Cr.P.C., the accused has no option under section 251 of Cr.P.C., just to deny the allegations made against him. If he is not willing to plead guilty, he must explain what are the defences he want to take. As such it has to be considered, whatever defence raised by the accused during the trial are all after thought, just to get ride of statutory burden cast on him.
37. In addition to this in the case of T.P.Murugan (Dead) through legal representatives V/s Bojan, reported in 2018(8) SCC 469, the Hon'ble Apex Court held that once the cheque has been signed and issued in favour of the holder of the cheque, there is statutory presumption that the cheque is issued in respect of legally enforceable debt or liability: rebuttal of such presumption must be by adducing credible evidence. Mere raising a doubt without cogent evidence with respect to the circumstances, presumption under section 139 of N.I.Act cannot be discharged. The principle of law laid down in the above decisions are applicable to the facts of this case. Except some bald C.C.NO.29084/2021 30 contentions, the accused has not been able to make out a probable case on his behalf.
38. As per the version of the accused is that the accused has nowhere denied transaction. The accused himself has admitted that he is the holder of alleged cheque. It is sufficient hold that the accused has issued the cheque-Ex.P.1 and even after he has not repaid the cheque amount the getting of receipt of notice. However, in any manner as the complainant have complied all the terms of ingredients of the provisions of 138 of N.I.Act. The accused is liable for dishonor of cheque. In case of dishonor of cheque, once the execution of cheque is admitted by the accused, then it for him to first rebut presumption arising out of section 139 of N.I.Act. Accordingly, PW.1 has established the case of the complainant, the accused had issued the cheque-Ex.P.1 in order to repay the legally recoverable amount. Therefore, the accused has failed to probables the defence taken by him that the cheque-Ex.P.1 was a blank cheque given to the complainant for the purpose of security of earlier transaction. Therefore, the accused has failed to rebut the presumption under section 139 of N.I.Act. In the said circumstances, the complainant is not at all required to produce any material as to the financial transaction between the complainant and the accused, since the initial presumption is still available, when there is no rebuttal C.C.NO.29084/2021 31 evidence.
39. PW.1 in his evidence has specifically deposed that the accused is a subscriber in the aforesaid branch and he has entered into a chit group No.N01/TC/002/07 for value of Rs.50,00,000/- per month of Rs.1,25,000/- the period of 40 months. The accused had participated in the chit auction held and he bid the chit amount of Rs.15,00,000/-, thereafter he had received prize money of Rs.35,00,000/-. Thereafter, he also had executed surety form, on demand promissory note, etc., in favour of the complainant company. It is further deposed that in respect of the prize money, which received by the accused, to pay aforesaid chits amount the accused had issued the cheque in question in favour of the complainant. So also it is not in disputed that the complainant and the accused are known to each other, some point of period, the complainant is a private limited chits company and the accused was a subscriber to the complainant company, this is not disputed by the accused. The accused has failed to rebut the presumption under section 139 of N.I.Act, non furnishing of details of financial transaction no consequences to disbelieve the case of the complainant. The accused has failed to probables his defence. With these reasons, I answer point No.1 and 2 in the Affirmative.
C.C.NO.29084/2021 32
40.POINT NO.3 AND 4: In order to avoid repetition of facts, these points are taken together for common discussion. Before a person is held to have committed an offence punishable under section 138 of N.I.Act, the complainant have to prove all the requirements of section 138 of N.I.Act. Ex.P.1 being drawn on the account of the accused is not in dispute. The said cheque having been dishonored for the reasons payment stopped, when it was presented by the complainant before the Bank for encashment is also not seriously disputed by the accused. The accused has not taken up any contention that thereafter he had paid the cheque amount within stipulated time of 15 days, after given of the notice. As such in the present case from perusal of documents, the essential requirements of section 138 of N.I.Act, have been complied with. In this case if the accused had issued a blank cheque in favour of the complainant for the purpose of security of earlier transaction and why he has not produced any documents. After service of notice the accused has not paid the said amount and failed to give reply to the said notice. Hence, the present complaint came to be filed before the court on 17.07.2021 within the period of one month from the date of cause of action.
41. While discussing the point No.1 and 2, this court has already observed that the complainant's have C.C.NO.29084/2021 33 proved that the cheque-Ex.P.1 was issued for discharge of legally enforceable liability/debt and in view of the mandatory requirements under section 138 of N.I.Act, being complied with. The accused is found to have committed an offence punishable under section 138 of N.I.Act. With these reasons, I answer point No.3 and 4 in the Affirmative.
42. POINT NO.5: The accused is held to have committed an offence punishable under section 138 of N.I.Act. The complainant have proved its case. The accused has failed to prove his rebuttal for the reasons mentioned above. PW.1 during his cross examination has specifically admits that the accused after obtaining the bail from this court on 02.01.2023, 08.03.2023, 06.07.2023 totally had paid a sum of Rs.1,75,000/- to the complainant. Hence, the admissions given by PW.1 is not a stray admission and this admission goes to shows that the accused has paid an amount of Rs.1,75,000/-. Hence, whatever amount this court impose as fine, which may be paid to the complainant under section 357(1)(b) of Cr.P.C., that amount which already paid for a sum of Rs.1,75,000/- is deducted. Further since the said offence is an economic crime. Hence, the accused is not entitled for the beneficial provisions of probation of offenders Act. In view of the above discussions and the findings on point No.1 to 4, I proceed to pass the following;-
C.C.NO.29084/2021 34 :ORDER:
Acting under section 255(2) of Cr.P.C., the accused is convicted for an offence punishable under section 138 of N.I.Act.
The bail bond of the accused is hereby stands canceled.
The accused is sentence to pay fine of Rs.4,32,000/- (Rupees four lakhs thirty two thousand only) to the complainant.
It is further ordered that out of the said fine amount an amount of Rs.4,25,000/- (Rupees four lakhs twenty five thousand only) shall be paid to the complainant as compensation as per Section 357(1)(b) of Cr.P.C., and remaining amount of Rs.7,000/- (Rupees seven thousand only) shall be remitted to the State.
In default of the payment of fine amount, the accused shall undergo simple imprisonment of six months.
(Dictated to the stenographer directly on computer typed by her, corrected by me and then judgment pronounced in the open court on 28 th day of March-
2024) Digitally signed by SOUBHAGYA B SOUBHAGYA BHUSHER B BHUSHER Date: 2024.03.30 17:11:45 +0530 (Soubhagya.B.Bhusher) XXVIII Addl. Chief Metropolitan Magistrate, Bengaluru. C.C.NO.29084/2021 35 ANNEXURE
List of witness examined on behalf of the complainant:
PW.1 : Mr.Raghuprasad.G. List of documents marked on behalf of the complainant:
Ex.P.1 : Cheque. Ex.P.1(a) : Signature of the accused. Ex.P.2 : Bank memo. Ex.P.3 : Office copy of legal notice. Ex.P.4 & 5 : Postal Receipts. Ex.P.6 : Postal acknowledgement. Ex.P.7 : Returned postal cover. Ex.P.7(a) : Returned legal notice. Ex.P.8 : Account statement. Ex.P.9 : Certified copy of the Minutes of Meeting. Ex.P.10 : Complaint.
List of witnesses examined on behalf of the accused:
DW.1 : Mohan Kumar.K.R List of documents marked on behalf of the accused:
Ex.D.1 : ICICI Bank Statement.
Digitally
signed by
SOUBHAGYA
SOUBHAGYA B BHUSHER
B BHUSHER Date:
2024.03.30
17:11:52
+0530
XXVIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
C.C.NO.29084/2021
36
28.03.2024 (Judgment pronounced in the Open
Court Vide Separate Sheet)
:ORDER:
Acting under section 255(2) of
Cr.P.C., the accused is convicted for an offence punishable under section 138 of N.I.Act.
The bail bond of the accused is hereby stands canceled.
The accused is sentence to pay fine of Rs.4,32,000/- (Rupees four lakhs thirty two thousand only) to the complainant.
It is further ordered that out of the said fine amount an amount of Rs.4,25,000/- (Rupees four lakhs twenty five thousand only) shall be paid to the complainant as compensation as per Section 357(1)(b) of Cr.P.C., and remaining amount of Rs.7,000/- (Rupees seven thousand only) shall be remitted to the State.
In default of the payment of fine amount, the accused shall undergo simple imprisonment of six months.
XXVIII Addl. Chief Metropolitan Magistrate, Bengaluru.