Bangalore District Court
M/S.Rajesh Exports Ltd vs Mr.P.Ganesh on 8 June, 2018
IN THE COURT OF THE XXV ADDL. CHIEF
METROPOLITAN MAGISTRATE, AT BANGALORE
Dated this the 8th day of June , 2018.
Present: Smt Shirin Javeed Ansari -BA.LL.B(Hon's)LL.M
XXV Addl. Chief Metropolitan Magistrate,
Bangalore.
C.C.No.47546/2010
Complainant: M/s.Rajesh Exports Ltd
Company Incorporated under the
Companies Act
and having its office at No.4,
Bhatavia Chambers
Kumara Krupa Road, Kumara Park
East
Bangalore 1.
Represented by its Authorized
representative
R.M.Nanjundaswany.
(By Sri Sampath Kumar K-Advocate )
- Vs -
Accused: Mr.P.Ganesh
S/o.P.Palani
No.631/118, 9th main road
Prakashnagar, Behind Mallika
Residency
Bangalore 16.
Offence complained of: U/s.138 of Negotiable Instrument Act
Plea of accused: Pleads not guilty.
Final Order: Accused is convicted.
Date of order: 8.6.2018
2 C.C.No.47546/2010
JUDGMENT UNDER SEC.355 OF CR.PC
This is a complaint filed by the complainant
u/s.200Cr.P.C.against the accused person for the
offence punishable u/s.138 Negotiable Instrument Act
(Herein after called as the N.I.Act for reference)
2. The brief facts of the case of the complainant
are as under:
The complainant company is incorporated under
the Companies Act 1956 having its registered office at
Bangalore. The complainant company is engaged in
the business of gold jewellery and gold bullion. The
complainant submits that the accused is responsible
for debt/liability of Rs.71,50,000/- towards the
complainant company. The said amount extended to
the accused as he had executed declaration .
3. The complainant further submits that in
respect of Inter Corporate Deposit so granted to the
accused the accused executed declaration confirming
3 C.C.No.47546/2010
and binding himself to be liable for debt/liability and
issued the cheque bearing No.543201 dt.1.7.2010
drawn on Karur Vysya Bank, Bangalore for
Rs.71,50,000/- in discharge of debt/liability of the
complainant company. The accused had promised the
complainant that the cheque will be honored upon
presentation. The complainant further submits that
as per the promise and assurance given by the
accused person the cheque bearing No.543201
dt.1.7.2010 for Rs.71,50,000/- was presented for
realization through complainant bank Canara Bank
Overseas branch, MG road, Bangalore. The
complainant submits that the said cheque returned
unrealised with endorsement "no funds available" on
8.7.2010. The complainant further submits that the
demand notice dt.21.7.2010 came to be issued to the
accused for payment of outstanding due amount
covered under the cheque. The said demand notice,
has been served on the accused on 22.7.2010.
4 C.C.No.47546/2010
4. The complainant further submits that there is
due service of demand notice on the accused. The
accused has failed to comply demand notice in
accordance with law. The accused had issued cheque
towards discharge of debt/liability and has executed
declaration, confirming the name. The cheque upon
presentation ought to have been honored by the
accused person. Upon failure to honor, a demand
notice came to be issued duly served on the accused.
Despite, of this the accused has not complied the
demand notice. Hence the accused has committed an
offence punishable u/s.138 Negotiable Instrument Act
Hence, the complainant prayed to convict the accused
person and to award compensation in their favour.
Hence, this complaint .
5. The complainant has lead his pre summoning
evidence and has filed his affidavit in lieu of Sworn
Statement. Prima-facie a case has been made out
against the accused and he has been summoned vide
order of this court.
5 C.C.No.47546/2010
6. The accused appeared before this court on
7.3.2011 and he has been enlarged on bail . The
substance of accusation has been read over to him to
which, he pleads not guilty and claims to be tried.
7. In his post summoning evidence the
complainant has examined himself as PW 1 and filed
his affidavit, wherein, he has reiterated the averments
made in the complaint and got marked the documents
at Ex.P.1 to Ex.P.9
8. IN view of the continuous absence of the
accused person before this court, the recording of the
statement of the accused u/s.313 Cr.P.C is hereby
dispensed with. The accused has not lead his defence
evidence also.
9. Heard the Advocate for the complainant.
Counsel for the accused did not even submit their
arguments .
10. Upon hearing arguments, the following
points arise for my consideration:
1. Whether the complainant
proves that the accused has
committed an offence
6 C.C.No.47546/2010
punishable u/s. 138 Negotiable
Instrument Act ?
2. What order.
11. My answers to the above points are as
under:
Point No.1 : In the Affirmative.
Point No2 : As per final order for the
Following,
REASONS
12.Point NO.1: The complainant company is
incorporated under the Companies Act 1956 having
its registered office at Bangalore. The complainant
company is engaged in the business of gold jewellery
and gold bullion. The complainant submits that the
accused is responsible for debt/liability of
Rs.71,50,000/- towards the complainant company.
The said amount extended to the accused as he had
executed declaration .
13. The complainant further submits that in
respect of Inter Corporate Deposit so granted to the
accused the accused executed declaration confirming
7 C.C.No.47546/2010
and binding himself to be liable for debt/liability and
issued the cheque bearing No. 543201 dt.1.7.2010
drawn on Karur Vysya Bank, Bangalore for
Rs.71,50,000/- in discharge of debt/liability of the
complainant company. The accused had promised the
complainant that the cheque will be honored upon
presentation. The complainant further submits that
as per the promise and assurance given by the
accused person the cheque bearing No.543201
dt.1.7.2010 for Rs.71,50,000/- was presented for
realization through complainant bank Canara Bank
Overseas branch, MG road, Bangalore. The
complainant submits that the said cheque returned
unrealised with endorsement "no funds available" on
8.7.2010. The complainant further submits that the
demand notice dt.21.7.2010 came to be issued to the
accused for payment of outstanding due amount
covered under the cheque. The said demand notice,
has been served on the accused on 22.7.2010.
8 C.C.No.47546/2010
14. The complainant further submits that there
is due service of demand notice on the accused. The
accused has failed to comply demand notice in
accordance with law. The accused had issued cheque
towards discharge of debt/liability and has executed
declaration, confirming the name. The cheque upon
presentation ought to have been honored by the
accused person. Upon failure to honor, a demand
notice came to be issued duly served on the accused.
Despite, of this the accused has not complied the
demand notice. Hence the accused has committed an
offence punishable u/s.138 Negotiable Instrument Act
Hence, the complainant prayed to convict the accused
person and to award compensation in their favour.
15. In support of the case, the complainant has
produced the documents marked at Ex.P.1 to Ex.P.9.
Ex.P.1 is the cheque dt.1.7.2010. bearing NO.543201
drawn Karur Vysya Bank for Rs.71,50,000/- . Ex.P.1
is the Certified copy of certificate of incorporation.
ExP.3 is the Certified copy of the Board Resolution.,
9 C.C.No.47546/2010
Ex.P.4 is the letter issued by Canara Bank to the
complainant . Ex.P.5 is the cheque return memo
dt.8.7.2010, Ex.P.6 is the legal notice dt.21.7.2010.
Ex.P.7 is the postal receipt. Ex.P8 is the notice
dt.21.7.2010. Ex.P8(a) postal cover. Ex.P.9 is the
Declaration. Ex,P9(a) is the signature of the accused
16. Inspite of sufficient opportunities and
hearing dates, the accused did not appear before the
court and did not even cross examine PW 1 . As such
the oral and documentary evidence put forth by the
complainant remained unchallenged.
17. On careful perusal of the material on
record specially Ex.P.9, the declaration, it is found
that the accused has confirmed and accepted receipt
of Rs.65,000/- the personal debt /liability in favour of
the complainant . Further the accused has admitted
the issuance of the cheque bearing No.543201 drawn
on Karur Vysya bank for Rs.71,50,000/- and it has
also been admitted by the accused that he has issued
the said cheque against the discharge of his liability
/debt along with interest towards the complainant
10 C.C.No.47546/2010
company. He has also undertook to ensure the
realization of the said cheque through his bank
account and also undertook to keep active operation
of his bank account with Karur Vysya bank until
realisation of the cheque. It is further admitted by
the accused in the said declaration that in the event of
non realisation of the cheque in question, the
complainant company is at liberty to initiate legal
proceedings against the accused by issuance of
demand notice at his residential address. Accordingly
after the dishonor of the cheque, the complainant has
issued the legal notice to the accused person at his
residential address mentioned in the declaration i.e
No.631/118 , 9th main road, Prakash Nagar behind
Mallika Residency, Bangalore 560016 . This aspect of
the matter clearly support the case of the complainant.
The accused has not challenged the present document
issued by him.
18. The contents of the complaint and the
examination-in-chief affidavit clearly establish the
ingredients of Sec.138 Negotiable Instrument Act. The
11 C.C.No.47546/2010
complainant in order to prove his case relied on the
oral evidence. Beside, the evidence is supported by
the documents produced by him. There is no
ambiguity in the oral and documentary evidence
brought on record. On careful examination of all the
documents of the complainant, it is clear that the
complaint is filed well within time. The bank
endorsement, bearing the shara "no funds available"
attracts Sec.138 Negotiable Instrument Act.
19. The next point for consideration is whether
the presumption could be drawn in favour of the
complainant. Section 139 of the Act provides that
unless contrary is proved, it shall be presumed that
the holder of the cheque received the same for
discharge of any debt or liability. The word "shall"
indicate that it is mandatory on the part of the
court to draw the presumption in favour of the holder
of the cheque in due course unless rebutted. At the
cost of repetition it is worth to note that the accused
has not taken any steps to rebut the said
presumption.
12 C.C.No.47546/2010
20. That apart, Sec.118 of Negotiable Instrument
Act lays down special rules of evidence applicable to
Negotiable Instruments. The presumption is one of
Law and there under a court shall presume that the
instrument was endorsed for consideration.
According to the complainant, they have
granted Inter Corporate Deposit to the accused person
and the accused person towards discharge of said
liability issued the cheque in question. The
complainant has also produced the cheque marked at
Ex.P.1. The complainant has further produced the
bank endorsement marked at Ex.P.5 which clearly go
to reveal that the cheque was dishonored for the
reason "no funds available", The complainant has
also produced the copy of legal notice marked at
Ex.P.6 and the postal receipt at Ex.P.7 . The returned
postal cover is marked is marked at Ex.P.8 .As the
evidence of the complainant remained unchallenged ,
the documents produced by the complainant also
remained unchallenged.
13 C.C.No.47546/2010
21. In this case plea of the accused is recorded
as per Sec..251 Cr.P.C, wherein the accused pleaded
not guilty. As per Sec.251 of Cr.P.C. the accused has
to state about his defence. Here, except pleading not
guilty, and stating that he has got defence evidence
to be lead, but, neither the accused nor his counsel
have come forward to lead any defence evidence. As
per the decision reported in AIR 2014 SC 2528
Indian Bank Association v/s. Union of India)
Crl.P.NO.8943/2010 M/s.Transgare Pvt.Ltd,
v/s.Dr.R.Parvathreddy and in Rajesh Agarwals
Case, wherein it is held that the accused cannot
simply say "I am innocent or I plead not guilty".
The presumption of law laid down in the afore said
decision is squarely applicable to the facts and
circumstances of this case. As such it cannot be taken
that the accused has rebutted the presumption of law
by mere pleading not guilty.
22. In this context , it is necessary to refer the
decision of the larger bench of the Hon'ble Apex Court
14 C.C.No.47546/2010
held in Rangappa v/s. Mohan reported in
AIR 2010 SC 1889 that :
"in the light of these extract, we are
in agreement, with the respondent -
claimant that presumption mandated
by Sec.139 of the Act does not indeed
include the existence of legally
enforceable debt or liability "
23. From the discussion made supra it is clear
that the accused has neither taken probable defence
nor taken steps to prove the same. The contention of
the repayment of the amount covered under the
cheque is also not proved through cogent and
acceptable evidence. To put it other way, the accused
has not rebutted the presumption of Law available in
favour of the complainant as envisaged under
sec.139 and 118 of Negotiable Instrument Act.
Accordingly, the case of the complainant is believable
one. Despite of giving sufficient opportunity the
accused has not bothered to lead defence evidence.
The accused has not rebutted the case of the
15 C.C.No.47546/2010
complainant. Hence, this Point No.1 is answered in the
Affirmative.
24. Point No.2: In view of the reasons stated
and discussed above, the complainant has proved
the guilt of the accused for the offence punishable
under Sec.138 Negotiable Instruments Act .
Hence, I proceed to pass the following :
ORDER
Acting u/s.255(2) Cr.P.C accused is convicted for the offence punishable under Sec.138 Negotiable Instruments Act and sentenced to pay fine of Rs.71,75,000/-.(Rs.Seventy One Lakhs Seventy Five Thousand only) In default, shall under go SI for a period of one year Acting under Section 357 (1) (b) of Cr.P.C, out of the fine amount the complainant is entitled for Rs. Rs.71,70,000/-.(Rs.Seventy One Lakhs Seventy Thousand only) towards compensation amount.
16 C.C.No.47546/2010Acting under Section 357 (1) (a) of Cr.P.C, the remaining fine amount of Rs.5,000/- (Rupees Five Thousand Only) is confiscated to the State .
Furnish free copy of judgment and order to convicted-accused.
(Dictated to the Stenographer directly on the computer, typed by her , corrected and signed then pronounced by me in the open court on this the 8th day of June , 2018).
(SHIRIN JAVEED ANSARI ) XXV A.C.M.M., BANGALORE.
ANNEXURE
1) LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
P.W.1 : R.M.Nanjundaswamy.
2) LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P.1 : Cheque.
Ex.P.1(a) : Signature of the accused .
Ex.P.2 : Certified copy of Incorporation
Ex.P.3 : CC of the Board Resolution.
Ex.P4 : Letter
Ex.P.5 : Bank Endorsement.
Ex.P.6 : Copy of the legal notice.
17 C.C.No.47546/2010
Ex.P.7 : Postal receipt.
Ex.P.8 : Notice.
Ex.P.9 : Declaration.
Ex.P9(a) : Signature of the accused.
3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:- -
-Nil-
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED:
-Nil-
( SHIRIN JAVEED ANSARI ) XXV A.C.M.M.,BANGALORE.18 C.C.No.47546/2010
8.6.2018.
For judgment:
ORDER (Judgment pronounced in open court vide separate sheets) Acting u/s.255(2) Cr.P.C accused is convicted for the offence punishable under Sec.138 Negotiable Instruments Act and sentenced to pay fine of Rs.71,75,000/-.(Rs.Seventy One Lakhs Seventy Five Thousand only) In default, shall under go SI for a period of one year Acting under Section 357 (1) (b) of Cr.P.C, out of the fine amount the complainant is entitled for Rs. Rs.71,70,000/-.(Rs.Seventy One Lakhs Seventy Thousand only) towards compensation amount.
Acting under Section 357 (1) (a) of Cr.P.C, the remaining fine amount of Rs.5,000/- (Rupees Five Thousand Only) is confiscated to the State .
Furnish free copy of judgment and order to convicted-accused.
19 C.C.No.47546/2010XXV A.C.M.M.,B'lore.
20 C.C.No.47546/2010 21 C.C.No.47546/2010