Bangalore District Court
Mr. Sreenivas Rentala vs Mr. Prakash Bojraj on 10 March, 2020
IN THE COURT OF THE XVII ADDL. JUDGE, COURT OF
SMALL CAUSES &
ADDL. CHIEF METROPOLITAN MAGISTRATE,
MAYO HALL UNIT, BENGALURU (SCCH21).
Dated: This the 10th Day of March 2020
PRESENT: Smt. VANI A. SHETTY, B.A. Law L.L.B,
XVII ADDL. JUDGE, Court of Small
Causes & ACMM, Bengaluru.
C.C. No. 51761/2018
Complainant/s : Mr. Sreenivas Rentala,
Aged about 35 years,
S/o. R.Radha Krishna Murthy,
Residing at Flat No.410,
Sandeep Square, Beside Temple Tree Leisure,
Near New Horizon College,
Panathur Road,
Bangalore - 560103
Mob. No. 9980010884
(By Sri. G.P., Advocate)
V/s.
Accused/s : Mr. Prakash Bojraj,
Aged major,
S/o. Not known,
Residing at Krishna Green Meadows,
T3, NRI Layout,
Kalkere Main Road,
Bangalore - 560043.
Mob. No.9620265368
(By Sri. R.H., Advocate)
JUDGEMENT
The accused in this case is tried for an offence punishable under Section 138 of Negotiable Instrument Act 1881, on the complaint of the complainant.
SCCH-21 2 C.C. No.51761/182. The summary of the complainant's case is that:
The complainant entrusted the accused for interior works in his flat and accused issued a quotation for Rs.9,77,060/. It is further stated that complainant has paid a total sum of Rs.14,70,500/, out of which around Rs.6,50,000/ was borrowed by the accused towards his financial problems and agreed to repay the same. As accused to failed to complete the interior work and on discussion, accused finalized to pay a sum of Rs.7,92,500/ towards uncompleted work and towards paying back the borrowed money. In discharge of the same, accused issued cheque bearing No.000162 dated 27.10.2017 for Rs.7,92,500/ drawn on Kotak Mahindra Bank, Coles road, Frazer branch, Bengaluru, assuring that the cheque would be honored if presented for payment. The complainant presented the said cheque for encashment through his banker State Bank of India, Akashnagar branch, Bengaluru. But the said cheque came to be dishonored on the ground of 'Funds Insufficient"
on 31.10.2017. Thereafter, on 11.11.2017 complainant got issued legal notice by RPAD demanding for repayment of the cheque amount within 15 days from the date of receipt of the notice. The notice sent through RPAD to the accused was served on 18.11.2017. Accused has sent untenable reply. But, the accused has not paid the amount and therefore, this complaint filed on 22.12.2017.
3. On filing of the complaint cognizance was taken for an offence punishable under section 138 of N.I. Act and sworn statement was recorded. As there was sufficient SCCH-21 3 C.C. No.51761/18 ground to proceed further, a criminal case has been registered against the accused and he was summoned. The substance of accusation is orally stated to the accused and his plea was recorded.Accused pleaded not guilty and submitted that he has defence to make.
4. In support of the complainant's case, the sworn statement filed by way of affidavit by the complainant during the presummoning stage is considered as his evidence and Ex.P1 to Ex.P20 documents is marked. The statement of the accused is recorded under Section 313 of Cr.P.C and his answers were recorded. The accused got examined himself as D.W1 and got marked one document as per Ex.D1.
5. Heard the arguments and perused the written arguments submitted by the complainant and accused.
6. The points that arise for my consideration are:
1. Whether the complainant proved that accused has committed an offence punishable under Section 138 of N.I. Act 1881?
2. What order?
7. My answer to the above points is as follows:
Point No.1 : In the Affirmative,
Point No.2 : As per final order
for the following:
SCCH-21 4 C.C. No.51761/18
REASONS
8. POINT No.1: In order to constitute an offence
under Section 138 of N.I. Act, the cheque shall be presented to the bank within a period of 3 months from its date. On its dishonor, the drawer or holder of the cheque as the case may be shall cause demand notice within 30 days from the date of dishonor, demanding to repay within 15 days from the date of service of the notice. If the drawer of the cheque fails to repay the amount mentioned in the cheque within 15 days from the date of service of notice, cause of action arises for filing complaint.
9. The sworn statement filed by the complainant by way of affidavit during the presummoning stage is considered as his evidence. In the affidavit, complainant has testified regarding the payment made towards interior works and for hand loan, issuance of cheque, issuance of demand notice and also failure of the accused to pay the cheque amount. The complainant has produced the cheque bearing No.000162 dated 27.10.2017 for Rs.7,92,500/ drawn on Kotak Mahindra Bank, Coles road, Frazer town branch, Bengaluru, alleged to be issued by the accused at Ex.P2. Ex.P2 cheque stands in the name of complainant for Rs.7,92,500/. Ex.P3 is the copy of endorsement issued by the bank stating dishonor of Ex.P2 cheque. Ex.P3 shows that Ex.P2 was dishonored for 'funds insufficient' on 31.10.2017. Ex.P4 is the office copy of legal notice dated 11.11.2017. Ex.P5 is the postal receipt for having sent legal notice to the SCCH-21 5 C.C. No.51761/18 accused. Ex.P6 is the postal track consignment evidencing the service of notice.
10. In the present case, cheque is dated 27.10.2017. Ex.P3 shows that cheque in question was dishonored on 31.10.2017. As per Ex.P3, it appears that the cheque was presented within three months from the date of cheque. The notice was issued within the statutory period of time. The notice was served to the accused on 18.11.2017 as per Ex.P6 postal track consignment. The learned counsel appearing for the accused by relying upon the decisions rendered in the case of M.D.Thomas vs. P.S.Jaleel and another (2009(14)SCC
398) and D.Vinod Shivappa vs. Nanda Belliappa (AIR 2006 S.C.2179) contended that notice is not served on the accused and the requirement of service of notice under clause (b) of proviso of Section 138 of N.I. Act is not complied. In the present case, the complainant has sent notice to the correct address of the accused. Further, the postal track consignment produced by the complainant at Ex.P6 clearly shows that notice was delivered to the accused. It is most important to point out that after the receipt of notice, accused has sent reply through his learned counsel as per Ex.P7. There is nothing on record to show that notice was served to some other person other than the accused. The object of issuing the demand notice is to give an opportunity to the accused to make payment if the cheque was dishonored by oversight. Therefore, the defence raised by the accused after issuance of reply notice to the demand notice is required to be considered as frivolous defence. Hence, the cause of action for filing the complaint arose on 04.12.2017.
SCCH-21 6 C.C. No.51761/18The complainant has filed this complaint on 22.12.2017 i.e. within 30 days from the date of arisal of cause of action. In this way, the complainant has complied all the mandatory requirements of Section 138 and 142 of N.I. Act.
11. Section 118 of N.I. Act lays down that, until the contrary is proved, it shall be presumed that every Negotiable Instrument was made or drawn for consideration. Section 139 of N.I. Act, contemplates that unless the contrary is proved, it shall be presumed that the holder of the cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole of any debt or liability. In the decision reported in 2001 Crl.L.J. page 4647 (SC) (Hiten P.Dalal -Vs Bratindranath Banerjee) and in various other decisions of Hon'ble Supreme Court and our Hon'ble High Court, repeatedly observed that in the proceeding under Section 138 of N.I. Act the complainant is not required to establish either the legality or the enforceability of the debt or liability since he can avail the benefit of presumption under Section 118 and 139 of N.I. Act in his favour. It is also observed that, by virtue of these presumptions, accused has to establish that, the cheque in question was not issued towards any legally enforceable debt or liability. Later in the year 2006, the Hon'ble Supreme Court in the decision M.S. Narayan Menon @ Mani -vs State of Kerala and another (2006 SAR Crl. 616) has held that, the presumption available under Section 118 and 139 of N.I. Act can be rebutted by raising a probable defence and the onus cast upon the accused is not as heavy as that of the prosecution.
SCCH-21 7 C.C. No.51761/18It was compared with that of a defendant in civil proceedings. Subsequently, in the year 2008, in Krishna Janardhana Bhat
-Vs Dattatreya G. Hegde (2008 Vo.II SCC Crl.166) Hon'ble Supreme Court has held that, existence of legally recoverable debt is not a presumption under Section 138 of N.I. Act and the accused has a constitutional right to maintain silence and therefore, the doctrine reverse burden introduced by Section 139 of N.I. Act should be delicately balanced.
12. In the decision, Rangappa - Vs - Mohan (AIR 2010 SC 1898) Hon'ble Supreme has considered this issue and clarified that, existence of legally recoverable debt or liability is a matter of presumption under section 139 of N.I. Act. In para 14 of the judgment the Hon'ble Supreme Court observed as here below:
"In light of these extracts, we are in agreement with the respondentclaimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under SCCH-21 8 C.C. No.51761/18 Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own. "
13. In view of the above decision, now it is clear that the presumption mandated by Section 139 of N.I. Act does indeed include the existence of legally enforceable debt or liability. It is a rebuttable presumption. It is open to the accused to raise the defence wherein the existence of legally enforceable debt or liability can be contested. For rebutting presumption, the accused do not adduce evidence with unduly high standard of proof but, the standard of proof for doing so with that of preponderance of probabilities. If the accused is able to raise a probable defence, which creates doubt about the existence of legally enforceable debt or SCCH-21 9 C.C. No.51761/18 liability, the onus shifts back to the complainant. It is also clear for rebutting the presumption accused can rely on the materials submitted by the complainant or his cross examination and he need not necessarily adduce his evidence in all the cases.
14. In the present case, complainant has complied all the mandatory requirements of Section 138 and 142 of N.I. Act by producing the documents and evidence. As per the case of the complainant, he engaged the accused for doing interior work in his flat for which accused issued a quotation for a sum of Rs.9,77,060/ for the entire work. The complainant has further stated that he paid to the accused a total amount of Rs.14,70,500/, out of which around Rs.6,50,000/ was borrowed by the accused for his financial problems and agreed to repay the same. The complainant has further stated that the accused has failed to complete the interior works and on discussion, accused finalized to pay an amount of Rs.7,92,500/ to the complainant as refund towards incomplete works and towards the borrowed money and issued Ex.P2 cheque for Rs.7,92,500/. On the other hand, accused has contended that while he borrowed an advance amount of Rs.3,50,000/ towards his work, he issued 2 blank signed cheques to the complainant. Accused has further contended that while he asked an amount for the extra work done by him, the complainant refused to give the money and presented Ex.P2 cheque by misusing it and filed this false case. It is his contention that he is not liable to pay the cheque amount.
SCCH-21 10 C.C. No.51761/1815. The issuance of Ex.P2 cheque and signature in it is not disputed by the accused. It is trite that when issuance of cheque is admitted or proved, the presumption contemplated under section 118 and 139 of N.I. Act is available to the complainant. This is reiterated by the Hon'ble Supreme Court in the case of Kumar Exports Vs. Sharma Carpets ((2009) 2 SCC 513) and in the recent decision of Hon'ble Supreme court rendered in the case of APS Forex Services Pvt Ltd vs Shakti International Fashion Linkers and others (2020 SCC Online SC 193). Therefore in the present case, complainant is entitled for the benefit of presumption contemplated under section 118 and 139 of N.I. Act. Now, it is for the accused to rebut the presumption by raising a probable defence or by creating a strong doubt in the case of the complainant.
16. It is not in dispute that accused is running a firm in the name of Espalia Designs and Constructions and complainant entrusted the interior works of his flat for the quotation amount of Rs.9,77,060/. According to the case of the complainant, accused has not completed the works entrusted to him. It is alleged by the complainant that accused has borrowed a hand loan of Rs.6,50,000/ and accused issued Ex.P2 cheque towards repayment of hand loan of Rs.6,50,000/ and the consideration amount of incomplete work. On the other hand, in Ex.P7 reply notice, the accused has taken up the contention that the total amount paid by the complainant was only Rs.12,86,600/ and not Rs.14,70,500/. In the reply notice, it is also stated that an additional amount given was only Rs.3,50,000/ and SCCH-21 11 C.C. No.51761/18 agreement was also entered between them for Rs.3,50,000/ in the month of May 2017. The specific portion of reply notice at Para No.2 to 4 is reproduced as hereunder:
"2. Our client bring to our notice that the averments made in para 1 of the notice is partly true that our client is running a firm with a name Espalia Designs and Constructions and your client had engaged out clients services for interior furnishing works and designs in Apartment Flat bearing No.410, at Sandeep Square for the quotation amount of Rs.9,36,060/(Rupees Nine lakhs thirty six thousand and sixty only) as mentioned in the notice, further your client has paid our client a sum of Rs.12,86,600/ (Rupees Twelve lakhs eighty six thousand and six hundred only) and not Rs.14,70,500/ (Rupees Fourteen Lakhs Seventy Thousand Five Hundred Only) as wrongly mentioned in your notice and your client has falsely instructed you to cause hardship and wrongful loss to our client and make wrongful gain for himself and your client is anyway put to strict proof of the same.
3. Out client bring to our notice that he had requested your client to give him an advance amount of Rs.3,50,000/(Rupees Three lakhs fifty thousand only) to complete the pending interior design works in the month of May 2017 and your client while agreeying to pay the amount insisted that our client give him the signed blank cheques without any date as security and promised our client not to misused the said cheques and our client believing your clients words gave him the two cheques while receiving the aforesaid amount and your client was further collecting interest at the rate of 4% for several months which rate of interest is very exorbitant and your client is liable to be punished under the stringent laws of our Karnataka Government which your goodself very well is aware.
4. Our client denies the allegations made in the notice and your client is put to strict proof of the same and your client has suppressed material fact that an agreement was entered into between your client and our client in month of May'2017 for a sum of Rs.3,50,000/(Rupees Three lakhs fifty thousand only) payable by our client to your client which our client is ready and willing to repay to your client but not the fictitious sum mentioned in your notice and your client is put to strict proof of the same."
17. The accused got examined himself as DW.1. In his evidence, he states that the quotation was given for the interior work is for Rs.9,60,000/ and it was finalized for Rs.9 SCCH-21 12 C.C. No.51761/18 lakhs. As already observed above, in the reply notice the quotation amount was mentioned as 9,36,060/. There is inconsistency in the amount of quotation claimed by the accused. The complainant has also produced the copy of quotation at Ex.P8. It shows that quotation amount was for Rs.9,77,060/ and it is admitted by the accused in his cross examination. Therefore, the contention of the accused raised in Ex.P7 reply notice to the effect that complainant has paid only Rs.12,86,600/(9,36,060+3,50,000) is falsified by the evidence on record. This is one area in which the defence raised by the accused does not inspire the confidence in the mind of the court.
18. It is also to be noted that in the reply notice at Para No.4, accused has stated about the receipt of Rs.3,50,000/. But the reply notice is silent about the nature of transaction pertaining to Rs.3,50,000/. In the chief examination of accused, he states that the said amount of Rs.3,50,000/ was received pertaining to the execution of his interior works. But in his crossexamination, he admits that an amount of Rs.3,50,000/ was obtained by him as loan. The specific portion of evidence given by DW.1 in his cross examination is reproduced as hereunder:
"ರರ.14 ಲಕ ಹಣದಲ ನನನ ಸಲವಗ ಅವರ ಬಳಯಯದ ರರ.6 ಲಕದ 50 ಸವರ ಹಣವನನ ನ ಪಡದರನತತತನ ಎಯದರ ಸರಯಲಲ. ಸಕಯನ ರರ.3 ವರ ಲಕ ನ ಸಲವಗ ಪರರದನದರರಯದ ಪಡದನಕರಯಡದನನ ಎಯದನ ಹತಳನತತರ. ಹಣವನನ ಪರರದನದರರನ ಕಳನಹಸದ ನರತಟತಸಗ ನನನ ಪ ಪತತ ನತತರ ನತಡರನತತತನ. ನಪ.7 ಪಪತತ ನತತರಕಕ ಮಹತಯನನ ನ ನನತ ನಮಮ ವಕತಲರಗ ನತಡರನತತತನ.SCCH-21 13 C.C. No.51761/18
Added to this, in the reply notice, he states that he has paid an interest @4% on the said amount for several months. Therefore, it is crystal clear that apart from the execution of interior works, accused has also availed loan from the complainant. In the reply notice, accused has contended that the complainant has suppressed about the agreement executed between them in the month of May 2017. Very strangely accused has failed to produce the said agreement without giving any explanation. Therefore, the evidence also shows that accused is not ready to disclose the true transaction before the court.
19. As already observed above, the onus is on the accused to rebut the presumption by giving a clear explanation along with supporting evidence. Though the accused has admitted in the reply notice that he is ready to repay Rs.3,50,000/, he has not repaid it till today. Accused has admitted in the cross examination that the interior work entrusted to him is not completed. But he has not disclosed the true value of the works executed by him. Even if the contention of accused that he is ready to repay Rs.3,50,000/ is considered, it cannot be accepted for the simple reason that he has failed to execute the works entrusted to him completely. Therefore, the defence of the accused that liability is restricted to Rs.3,50,000/ does not stand to the reason. It is also important to note that while accused admitting the receipt of Rs.12,86,600/ which is more than the quotation amount, in the evidence he has not bothered to give proper explanation. The defence raised by the accused is inconsistent, uncertain and incomplete. Hence, the defence SCCH-21 14 C.C. No.51761/18 raised by the accused is not capable of shaking the strong presumption contemplated under section 118 and 139 of N.I. Act.
20. It is also cannot be lost sight of the fact that complainant entrusted the work to the accused. Normally, while undertaking the work to be executed, the service provider would seek for security for the payment and not the persons who avails the service. Under these circumstances, it is not probable that Ex.P2 cheque issued only for security. Even if it was issued as security, initially it will not make any difference unless the accused is able to raise a probable defence.
21. The learned counsel appearing for the accused by relying upon the decisions rendered in the case of K.Subramani vs. K.Damodar Naidu ((2015) 1 SCC 99) and Thippeswamy vs. Gopalashetty K.Shettar (2017(1) Crimes
287) contended that the complainant was not financially capable to lend the hand loan. But in the reply notice itself accused has admitted the receipt of Rs.12,86,060/ which is much more than the quotation amount. Accused has also admitted in the cross examination about the receipt of hand loan of Rs.3,50,000/. Therefore, the financial capacity of the complainant cannot be disbelieved.
22. The learned counsel appearing for the accused placed reliance on the decision rendered in the case of I.O.C. vs. NEPC India Ltd., ((2006) 6 SCC 736) and contended that dispute is purely civil in nature. But in the present case, SCCH-21 15 C.C. No.51761/18 accused admitted the issuance of cheque and dishonor of cheque is proved. If the accused failed to pay the cheque amount within 15 days from the date of service of notice, it constitutes an offence. Therefore, the prosecution is maintainable. The parties cannot agitate the general liability before the consumer forum. The scope of inquiry under Consumer Protection Act is restricted to the deficiency of service. Therefore, the complaint filed before the consumer forum will not have anything to do with the present proceedings. It is important to note that the repayment alleged by the complainant in the present case is towards consideration amount for incomplete service and for hand loan. The consideration amount mentioned in Ex.P2 cheque is not in respect of compensation amount for deficiency of service. Hence, this contention also fails.
23. Learned counsel appearing for the accused also relied on the decision rendered in the case of Jose vs. P.C. Joy and another (AIR 2008 (NOC) 2784 (Ker.) and contended that a blank cheque which contains only the signature cannot be construed as cheque. Ex.P2 cheque is not merely contained the signature and it has fulfilled all the requirement of Sec.6 of N.I. Act. Further, the ratio laid down in said decision does not holds good in view of the decision of Hon'ble Supreme Court rendered in the case of Bir Singh vs. Mukesh (2019 SCC online SC 138), wherein it is observed as hereunder:
"37. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the SCCH-21 16 C.C. No.51761/18 payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted.
38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.
39. It is not the case of the respondentaccused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative.
40. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.
42. In the absence of any finding that the cheque in question was not signed by the respondentaccused or not voluntarily made over to the payee and in the absence of any evidence with regard to the circumstances in which a blank signed cheque had been given to the appellantcomplainant, it may reasonably be presumed that the cheque was filled in by the appellantcomplainant being the payee in the presence of the respondentaccused being the drawer, at his request and/or with his acquiescence. The subsequent filling in of an unfilled signed cheque is not an alteration. There was no change in the amount of the SCCH-21 17 C.C. No.51761/18 cheque, its date or the name of the payee. The High Court ought not to have acquitted the respondent accused of the charge under Section 138 of the Negotiable Instruments Act.
24. Learned counsel appearing for the accused also relied upon the decisions rendered in the case of Krishna Janardhana Bhat vs. Dattatraya G.Hegde ((2008) 4 SCC 54) and P.Venugopal vs. Madan P.Sarathi ((2009) 1 SCC 492) and contended that the existence of legally recoverable debt is not a matter of presumption under section 139 of N.I. Act. But the said decisions does not hold good in view of the decision of Hon'ble Supreme court rendered in the case of Rangappa vs. Mohan (AIR 2010 SC 1898).
24. Learned counsel appearing for the accused also relied upon the decisions rendered in the case of Sudhir Kumar Bhalla vs. Jagdish Chand & etc., (AIR 2008 S.C.2407) and MSN Menon & Main vs. State of Kerala (2006) 6 SCC 39) and contended that the cheque issued by way of security does not attract the criminal liability. But in the recent decision of M/s. Womb Laboratories Pvt. Ltd., vs. Vijay Ahuja and another (2019(4) RCR(Criminal 358)), it is held that handing over of security cheques per se would not extricate the accused from discharge of liability arising from such cheques. Hence, none of the defences raised by the accused are capable to rebut the presumption available in favour of the complainant. Therefore, I am constrained to hold that complainant has proved the guilt of the accused for an offence punishable under Section 138 of N.I. Act. Accordingly, I answer Point No.1 in the AFFIRMATIVE.
SCCH-21 18 C.C. No.51761/1825. POINT No.2: Section 138 of N.I. Act empowers the Court to sentence the accused upto two years and also to impose fine which may extend to twice the amount of cheque, or with both. The cheque in question was issued on 27.10.2017 for Rs.7,92,500/. The complainant was deprived of money that was rightfully due to him for a period of more than two years. However, having regard to the facts of the case and the amount involved, there are no warranting circumstances to award the sentence of imprisonment as substantive sentence. Directing the accused to pay fine and also awarding compensation to the complainant would meet the ends of justice. But adequate default sentence shall have to be imposed to ensure the recovery of fine imposed to the accused. Therefore, the complainant is required to be suitably compensated as per section 80 and 117 of the Negotiable Instrument Act and also appropriate in default sentence. Having regard to all these fact, I pass the following:
ORDER Acting under Sec.265 of Cr.P.C, the accused is found guilty for an offence punishable under Sec.138 of N.I. Act and he is sentenced to pay a fine of Rs.9,00,000/ (Rupees nine lakhs only). In default to pay fine, the accused shall undergo simple imprisonment for a period of one year.
Further, acting under Section 357(1)(b) of Cr.P.C., out of the fine amount, a sum of Rs.8,95,000/ (Rupees eight lakhs ninety five thousand only) on recovery shall be paid as compensation to the complainant.SCCH-21 19 C.C. No.51761/18
The office is directed to supply a free copy of judgment to the accused.
(Dictated to the Stenographer, typed by her, same is corrected, signed and then pronounced by me in the open court on this the 10 th day of March 2020) (VANI A. SHETTY) XVII ADDL. JUDGE, Court of Small Causes & ACMM, Mayo Hall Unit, Bengaluru.
ANNEXURE List of witnesses examined on behalf of the complainant:
P.W 1: Sreenivas Rentala List of documents marked on behalf of the complainant:
Ex.P.1 & 2 : Cheques Ex.P.3 : Bank endorsement Ex.P.4 : Copy of Legal notice Ex.P.5 : Postal receipt Ex.P.6 : Postal track consignment Ex.P.7 : Reply Ex.P.8 : Email Ex.P.9 to 14 : Emails & Receipts Ex.P.15 to 17 : HDFC Bank statements Ex.P.18 : SBI Bank statement Ex.P.19 : Paytm statement Ex.P.20 : Email dated 21.05.2019 Ex.P.21 to 26 : Photos
List of witnesses examined on behalf of the accused:
D.W.1: Prakash Bhojaraj SCCH-21 20 C.C. No.51761/18 List of documents marked on behalf of the accused:
Ex.D.1 : C.C of complaint filed before Consumer Forum (VANI A. SHETTY) XVII ADDL. JUDGE, Court of Small Causes & ACMM, Mayo Hall Unit, Bengaluru.
*********** SCCH-21 21 C.C. No.51761/18 SCCH-21 22 C.C. No.51761/18