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Bangalore District Court

Sri Vigneshwara Agency vs H.N.Ashok Kumar on 9 April, 2015

    IN THE COURT OF THE XX ADDL.CHIEF METROPOLITAN
             MAGISTRATE AT BANGALORE CITY

                  Dated this the 9th day of April 2015

              PRESENT: M.RAMESHA B.A., LL.M.,
                       XX ADDL. C.M.M. Bangalore.

                        C.C.No.2774/2013

Complainant             SRI VIGNESHWARA AGENCY,
                        Dealers in Steel & Cement,
                        At No.3, Chikka Bidarakallu,
                        Dasanapura Hobli, Nagasandra Post,
                        Bangalore - 560 073.
                        Represented by its proprietor,
                        U.K.Kumar.

                        (Represented by Sri.M.Subramani - Advocate)

                                       Vs.

Accused                 H.N.Ashok Kumar,
                        R/at No.24,
                        H.S.Nanjappa Kamalamma Nilaya,
                        1st Main Road,
                        Vrushabavathi Nagar,
                        Bangalore - 560 079.

                        (Represented by Sri.D.M.Girish - Advocate)


Offence complied of     U/S. 138 of N.I. Act.,


Plea of accused         Pleaded not guilty


Final Order             Accused is Convicted


Date of Order           09-04-2015
                                     2                        C.C.2774/2013




                              JUDGMENT

The complainant has filed this complaint U/S. 200 of Cr.P.C., against the accused for the offence punishable U/S.138 of Negotiable Instruments Act ( in short for "N.I. Act").

2. After taking the cognizance of the offence, on being served the summons, the accused was appeared before the court through his counsel and got released him on bail. The substance of accusation was read over and explained to the accused, wherein he pleads not guilty and claimed to be tried.

3. In order to prove his case, the complainant examined as PW.1 and got marked the documents as per Ex.P.1 to 5. Thereafter, accused has been examined as required U/S 313 of Cr.P.C., by explaining incriminating evidence appeared against him. Wherein, he denied the entire evidence of complainant, but he did not chosen to adduce any defence evidence.

4. Heard the argument advanced by the Learned Counsel for the complainant. Since the accused and his counsel remained absent, hence accused side argument taken as nil.

5. Now the points that arise for my consideration are as follows;

POINTS

1. Whether the complainant has made out all the ingredients of Sec.138 of N.I. Act. to prove the guilt of the accused?

2. What Order?

Now my answer to the above points is as follows;

1. Point No.1: In the affirmative

2. Point No.2: As per the final order for the following;

REASONS

6. POINT No.1: I have perused the complaint, oral and documentary evidence available on record. It is the specific case of the complainant that, the accused had approached the complainant agency for purchase of steel, has the complainant who is a dealer of the same sold the steel worth of Rs.2,70,480/- vide bill No.447 dated 12.10.2012. In pursuance of the goods received by the accused and in order to clear the bill amount the accused had issued a cheque bearing No.500325 dated 15.10.2012 for Rs.2,70,480/- in favour of the complainant, drawn on State Bank of India, Basaveswaranagar Branch, Bangalore. When the complainant has presented the said cheque for realisation through his banker, the said cheque was dishonoured for the reason "FUNDS INSUFFICIENT" and returned with bank memo. Thereafter in spite of issuing demand notice to the 4 C.C.2774/2013 accused, but he failed to comply the notice. Hence the present complaint.

7. In support of his case the complainant has filed his affidavit of chief examination by reiterating the complaint averments. Further the complainant has produced the documents which are marked at Ex.P. 1 to Ex.P. 5. Ex.P. 1 is the cheque in question said to have been issued by the accused, Ex.P. 2 is the bank endorsement, which reveals that the Ex.P. 1 cheque was dishonoured for the reason "FUNDS INSUFFICIENT", Ex.P. 3 is the office copy of the demand notice, Ex.P. 4 is the postal receipt for having sent the notice through RPAD to the accused, Ex.P. 5 is the postal acknowledgement. All these documents goes to show that after dishonour of the cheque and after receiving the bank return memo the complainant had issued demand notice to the accused within time and after completion of 15 days from the date of service of notice complaint came to be filed within time.

8. It is pertinent to note that even though the accused pleaded not guilty and claimed to be tried, he did not chosen to cross examine PW.1, even though sufficient opportunity has been given to him. Further the accused also did not adduce any defence evidence to disprove the complainant's case. Even though NBW has been issued against the accused repeatedly, but he did not secured. It shows that 5 C.C.2774/2013 accused has intentionally avoiding the process of the court in order to drag on the proceedings. As this is a summary trial proceedings, in order to avoid delay in dispensation of justice defence evidence taken as nil.

9. On the other hand oral and documentary evidence brought on record by the complainant are remained unchallenged. It is pertinent to note that even though the accused did not contest the case of complainant and he did not adduce any defence evidence. Further he did not denied the issuance of cheque in question in favour of the complainant. When such being the case, there is no impediment to draw the statutory presumption in favour of the complainant as contemplated U/S.139 of N.I. Act, that the cheque in question has been issued by the accused to discharge of legally enforceable debt or liability. On the other hand accused has not made any efforts to rebut the presumption U/S.139 of the N.I. Act. The evidence of PW. 1 along with documentary evidence are clearly and categorically established all the ingredients of section 138 of N.I. Act and the complainant has proved the guilt of the accused for the offence punishable U/S 138 of N.I. Act. Accordingly, I answer point No. 1 in the affirmative.

10. POINT NO.2: In view of my above findings and reasons, I proceed to pass the following;

ORDER Acting U/S 255(2) of Cr.P.C., accused is hereby convicted for the offence punishable U/S 138 of N.I. Act and accused is sentenced to pay a fine of Rs.3,10,000/- (Rupees Three Lakhs Ten Thousand only). In default thereof he shall suffer simple imprisonment for 6 (Six) months.

The fine if realized, Rs.3,00,000/-

( Rupees Three Lakhs only) there from shall be paid to the complainant as a compensation, remaining fine amount of Rs.10,000/-(Rupees Ten Thousand only) is defrayed to the state for the expenses incurred in the prosecution.

The bail bond of the accused and that of surety stands cancelled.

Office to supply the copy of this Judgment to the accused immediately on free of cost.

{Dictated to the stenographer, transcribed and computerized by her, corrected and then signed by me and then pronounced in the open court on this 9th day of April 2015} (M. RAMESHA), XX ACMM, Bangalore.

ANNEXURE List of witnesses examined on behalf of the prosecution:

P.W.1 U.K.Kumar List of Exhibits marked on behalf of the prosecution:

Ex.P. 1                        Cheque
Ex.P. 1(a)                     Signature of the accused
Ex.P. 2                        Bank endorsement
Ex.P. 3                        Copy of the legal notice
Ex.P. 4                        Postal Receipt
Ex.P. 5                        Postal acknowledgement

List of witnesses examined for the defence:

-Nil-

List of documents marked on behalf of defence:

-Nil-

XX A.C.M.M., Bangalore.