Bangalore District Court
Suprabhatha Chits vs Sri.K. R. Raghu on 7 March, 2023
KABC030593622022
Presented on : 22-07-2022
Registered on : 22-07-2022
Decided on : 07-03-2023
Duration : 0 years, 7 months, 16 days
IN THE COURT OF XXVII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU
Present: Sri. H. Satish B.A.L, LL.B., LL.M.,
XXVII A.C.M.M Bengaluru.
Dated: This the 7 th day of March 2023.
C.C. NO.23447/2022
Complainant SUPRABHATHA CHITS
PVT LTD.
Registered Office at:
No.173/3, 1st Floor, 14th Cross,
1st Block, Near SBI Bank,
Rajajinagar,
BENGALURU 560010.
Represented by its Foreman
Sri. G.K. Umesh.
S/o. Sri. Kempe Gowda,
Aged about 40 Years.
(Rep by Sri. K.R. Dinakar Adv.)
V/s.
Accused SRI.K. R. RAGHU
S/o. Sri. K.T. Ramaiah,
Aged about 42 Years,
No.9, 11th A Cross,
Parcy Layout,
S.P. Extension,
BENGALURU 560003.
(Reptd by Sri.B. Krishna Gowda
Adv.,)
U/s.138 of Negotiable
Offence
Instruments Act.
2 C.C. No. 23447/2022
Plea of the accused Claims to be tried
Final Order CONVICTED
Judgment Date 07/03/2023
****
JUDGMENT
The complainant company has filed complaint U/Sec.200 of Code of Criminal Procedure against the Accused for the offence punishable U/Sec.138 of Negotiable Instrument Act.
2. The facts germane for disposal of the instant complaint can be summarized as per following:-
It is the case of the Complainant Company that it is engaged in the business of promoting and conducting chit business as per the provisions of Chit Funds Act of 1982 and one Soubhagya is the subscriber to the chit group bearing No. S92002/20 for a chit value of Rs.15,00,000/- and an amount of Rs.50,000/- was to be paid for a period of 30 months and she entered in to a 3 C.C. No. 23447/2022 Chit agreement with the complainant company on 30/10/2019. It is stated that the said Smt. N. Soubhagya participated in the 7th auction held 20/03/2020 and was declared as prize bidder and received prize money of Rs.10,02,500/-.
3. It is stated that, the said Smt. N. Soubhagya paid 11 installments and discontinued the payment of installments and was liable to pay outstanding amount of Rs.12,54,835/- as on 30/04/2022 and thereafter, the complainant company got issued legal notice to the said Smt. N. Soubhagya and her guarantors and thereafter, the accused who was one of the guarantor to the said Smt. N. Soubhagya came forward to settle the outstanding dues of the said Smt. N. Soubhagya and towards discharge of liability due and payable, the accused issued Cheque bearing No. 000028 dated:
26/04/2022 for a sum of Rs.3,00,000/- and cheque bearing No. 000029 dated: 28/04/2022 for a sum of 4 C.C. No. 23447/2022 Rs.3,00,000/- totally for a sum of Rs.6,00,000/-, both drawn on Bank of Baroda, 197, Ganganagar, R.T. Nagar Branch, Bengaluru.
4. It is stated that, on 26/04/2022 & 28/04/2022 the complainant company presented the said cheques respectively for encashment through its banker i.e., State Bank of India, Rajajinagar, I Block Branch, Bengaluru and the same got dishonoured and returned with memo dated: 27/04/2022 & 29/04/2022 stating " FUNDS INSUFFICIENT " . Thereafter, the complainant company got issued legal notice dated: 04/05/2022 to the accused calling upon him to repay the amount covered under the aforesaid cheques within 15 days from the date of receipt of notice and the same was returned "Unserved". Thereafter, the accused has not paid the amount covered under the aforesaid cheques. Hence, this complaint. 5 C.C. No. 23447/2022
5. The sworn statement of the Foreman of the complainant company by name G.K. UMESH was recorded and as the complainant had complied the mandatory requirements of section 138 of Negotiable Instrument Act, this Court took cognizance of the offence and issued summons to the Accused. After service of summons, Accused entered appearance and was enlarged on bail.
6. The plea of the Accused was recorded and the substance of the accusation was read over to the accused in the language known to him and the same was explained, to which, accused pleaded not guilty and submitted he has defense to make.
7. In order to prove the case, the Foreman of complainant company by name G.K. UMESH got himself examined as PW.1 and got marked Ex.P1 to Ex.P22 documents.
6 C.C. No. 23447/2022
8. The statement of Accused under section 313 Code of Criminal Procedure was recorded. The accused denied the incriminating evidence appearing against him. The accused has not let in oral evidence and no documents are marked on his behalf.
9. Heard Arguments on both the sides. I have perused materials on record.
10. The following points arise for my determination:
(1) Whether the complainant company proves that towards discharge of liability payable by Chit subscriber by name Smt. Soubhgya. N the accused as a guarantor issued cheque bearing No. Cheque bearing No. 000028 dated:
26/04/2022 for a sum of Rs.3,00,000/- and cheque bearing No. 000029 dated: 28/04/2022 for a sum of Rs.3,00,000/- totally for a sum of Rs.6,00,000/- both drawn on Bank of Baroda, 197, Ganganagar, R.T. Nagar Branch, Bengaluru.?7 C.C. No. 23447/2022
(2) Whether the complainant company proves that accused has committed offence punishable U/Sec.138 of Negotiable Instrument Act?
(3) What order?
11. My answer to the above points is as per following:-
Point No.1 & 2 : In the Affirmative
Point No.3 : As per the final order,
for the following:-
R EAS O N S
12. Point No.1 & 2 : In-order to prove the case, the Foreman of complainant company by name Umesh. G.K got himself examined as PW1 and the affidavit filed by him in lieu of sworn statement was treated as examination in chief as per the dictum laid down in the ruling of the Hon'ble Apex Court of India, reported in (2014) 5 SCC 590 (Indian Bank Association & Ors V/s. Union of India & Ors). The 8 C.C. No. 23447/2022 complainant company got marked Ex.P1 to P22 documents.
13. The complainant company has exhibited the following Ex.P1 to P22 documents. Ex.P1 is the Resolution dated: 08/05/2017, Ex.P2 is the Chit commencement order 28.10.2019 , Ex.P3 is the Chit commencement certificate, Ex.P4 is the Chit Agreement, Ex.P5 is the Chit Bid details, Ex.P6 is the Payment Voucher, Ex.P7 is the Account statement, Ex.P8 is the Surety proposal form, Ex.P9 is the Final Reminder Notice, Ex.P10 is the postal receipts, Ex.P11 & 12 are the Postal track consignments, Ex.P13 is the Ledger extract, Ex.P14 is the Cheque dated: 26/04/2022, Ex.P14(a) is the signature of the accused, Ex.P15 is the Cheque dated:
28/04/2022, Ex.P15(a) signature of the accused, Ex.P16 & 17 are the Bank endorsements dt: 27/04/2022 & 29/04/2022, Ex.P18 is the office copy of Notice dated 9 C.C. No. 23447/2022 04/05/2022, Ex.P19 is the Postal receipt, Ex.P20 is the Returned RPAD Cover, Ex.P21 is the guaranty agreement and Ex.P22 is the Promissory note.
14. On careful scrutiny of the documents produced by the complainant, prima-facie it goes to show that the complainant has discharged initial burden of proving presentation of Ex.P14 & 15 cheques, bouncing of cheques, issuance of notice. At this juncture, I find it relevant to quote ruling reported in 2010(11) SCC 441, decided between Rangappa Vs. Sri. Mohan wherein the Hon'ble Apex Court held that:
Presumption under section 139 of Negotiable Instrument Act, 1881 includes the presumption of the existence of legally enforceable debt or liability. That presumption is required to be honoured and if it is not so done, the entire basis of making these provision will be lost. Therefore, it has been held that, it is for the Accused to explain his case and defend it once the fact of cheque bouncing is prima-facie established. The brain is on him to disprove the allegations once a prima-facie case is made out by the complainant ".10 C.C. No. 23447/2022
15. In the aforesaid ruling the Hon'ble Apex court has held that once the complainant establishes the bouncing of cheque, then it is for the accused to disprove the allegations and also it is for him to rebut the presumption as contemplated under section 139 of Negotiable Instrument Act by placing acceptable evidence.
16. It is to be noted that, accused has not stepped into the witness box to disprove the case of the complainant. The Hon'ble Apex court in the ruling reported in 2019 SCC Online SC 491 decided between Basalingappa V/s Mudibasappa at para 25(3)(4) and (5) has categorically held that :
to rebut the presentation, it is open for the accused to rely on evidence led by him or the accused can rely on the material submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the material brought on record by the parties, but also by reference to the circumstances which they rely and also held, it is not necessary for the accused to come in the witness box in 11 C.C. No. 23447/2022 support of defence, section 139 imposes an evidenciary burden and not a persuasive burden.
In the light of the principle laid down above, it is not necessary for the accused to step into the witness box to disprove the case of the complainant.
17. It is required to be noted that, the complainant has produced Ex.P2 to 12 & 22 & 23 documents to establish the transaction in question. The accused has not cross examined PW1 and he has not disputed the said documents and transaction in question and the accused has not disputed his signature at Ex.P14 & 15 cheques and he has not disputed that Ex.P14 & 15 cheques does not belongs to him. That apart, the accused has not even produced any materials before the court to disprove the transaction in question.
18. The complainant company has issued Ex.P18 Legal notice to the accused and the same was returned unserved as per Ex.P20 and the accused has not 12 C.C. No. 23447/2022 disputed issuance of Ex.P18 notice or that the address mentioned at Ex.P18 Legal notice and Ex.P22 Returned Postal cover does not belongs to him. It is required to be noted that, on 22/02/2023, both the complainant and accused filed Joint Memo and submitted that parties have settled the matter in terms of the joint memo and also submitted that they do not have objection to pronounce judgment for the amount agreed.
19. It is to noted that, in the ruling reported in 2021 SCC Online SC 925 decided between Jimpex Pvt Ltd., V/s Manoj Goel decided on 08/10/2021, the Hon'ble Apex Court at para 38 has held that:
when a complainant party enters in to a compromise with the accused, it may be for a multitude of reasons, higher compensation, faster recovery of money, uncertainty of trial and strength of the complainant among others. A complainant enters in to a settlement with open eyes and undertakes the risk of the accused failing to honour the cheque issued pursuant to settlement, based on certain benefits that the settlement agreement postulates. Once parties have voluntarily entered in to agreement and to abide by the consequence of non compliance settlement agreement, they cannot be allowed to reverse the effect of the agreement by pursuing the both original complaint and the subsequent 13 C.C. No. 23447/2022 complaint arising such non-compliance. The settlement agreement subsumes original complaint.
In the light of the principle laid down above, the complainant and accused have filed joint memo stating that they have settled the matter. Therefore, the accused cannot deviate from his stand and he is liable to pay the amount as agreed by him.
20. That apart, the material placed on record by the complainant company discloses that the complainant company has complied the mandatory requirements of section 138 of Negotiable Instrument Act and as the accused has not cross examined PW1 to disprove the case of the complainant and also taking note of the joint memo filed by accused, it could be concluded that accused has failed to rebut the presumption as contemplated U/sec 139 of Negotiable Instrument Act by placing acceptable evidence. However, taking note of the settlement arrived between the parties as per Joint 14 C.C. No. 23447/2022 Memo dated: 22/02/2023, this court is of the view that there is no impediment to direct the accused to make the payment as agreed by him. Accordingly, I answer the Point No.1 & 2 in the Affirmative.
21. Point No.3 :- In view of my findings to the Points No.1 & 2, I proceed to pass the following:-
O R DE R In exercise of power conferred U/sec. 255(2) of Code of Criminal Procedure, the accused is convicted for the offence punishable U/s.138 of N.I. Act and sentenced to pay fine of Rs.6,00,000/-.
In default of payment of the said fine amount, the accused shall undergo simple imprisonment for a period of Three months.
Out of the said fine amount, an amount of Rs.6,00,000/- shall be paid to the complainant as compensation as contemplated U/sec. 357(1) of Code of Criminal Procedure.15 C.C. No. 23447/2022
(Dictated to the stenographer directly on computer, corrected and then pronounced in open court by me on this the 7th day of March, 2023) (H. Satish) XXVII A.C.M.M., Bengaluru.
ANNEXURE Witnesses examined on behalf of the complainant:
PW2 : UMESH. G.K Documents marked on behalf of the complainant Ex.P1 : Resolution dated: 08/05/2017, Ex.P2 : Chit commencement order 28.10.2019 Ex.P3 : Chit commencement certificate Ex.P4 : Chit Agreement Ex.P5 : Chit Bid details Ex.P6 : Payment Voucher Ex.P7 : Account statement Ex.P8 : Surety proposal form Ex.P9 : Final Reminder Notice Ex.P10 : Postal receipts 16 C.C. No. 23447/2022 Ex.P11 & 12 : Postal track consignments Ex.P13 : Ledger extract Ex.P14 : Cheque dated: 26/04/2022 Ex.P14(a) : Signature of the accused Ex.P15 : Cheque dated: 28/04/2022 Ex.P15(a) : Signature of the accused Ex.P16 & 17 : Bank endorsements dt: 27/04/2022 & 29/04/2022 Ex.P18 : Office copy of Notice dated 04/05/2022 Ex.P19 : Postal receipt Ex.P20 : Returned RPAD Cover Ex.P21 : Guaranty agreement Ex.P22 : Promissory note.
Witnesses examined on behalf of the accused:
-NIL-
Documents marked on behalf of the accused:
-Nil-
XXVII A.C.M.M Bengaluru.17 C.C. No. 23447/2022
07/03/2023 Comp: Sri. KRD Adv., Accd: Sri. BK Adv., For Judgment.
Complainant and counsel absent. Accused absent and counsel absent.
By virtue of provision contained in Sec.353(6) of Cr.P.C., judgment can be pronounced in the absence of accused if it is of Acquittal or fine.
(Order typed vide separate sheet) OR DE R In exercise of power conferred U/sec. 255(2) of Code of Criminal Procedure, the accused is convicted for the offence punishable U/s.138 of N.I. Act and sentenced to pay fine of Rs.6,00,000/-.
In default of payment of the said fine amount, the accused shall undergo simple imprisonment for a period of Three months.
Out of the said fine amount, an amount of Rs.6,00,000/- shall be paid to the complainant as compensation as contemplated U/sec. 357(1) of Code of Criminal Procedure.
(H. Satish) XXVII A.C.M.M., Bengaluru.