Bangalore District Court
Smt.Manju Sharma vs Praveen.K on 8 January, 2021
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 8th day of January - 2021
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.4357/2018
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Smt.Manju Sharma,
W/o.Kishore Chandra Sharma,
Aged about 57 years,
R/at No.1797, 10th Cross,
6th Main, RPC Layout,
Bengaluru-40.
(Rep. by Sri.Anilkumar Shetty, Adv.)
V/S
Accused : Praveen.K,
No.6, [113/B], 3rd Floor,
30 Feet Service Road,
Opp. Attiguppe Metor Station,
Hampinagar, Vijayanagar,
Bengaluru-104.
(Rep.by Sri.D.C.Prakash, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Convicted.
DATE OF ORDER : 08.01.2021.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
Judgment 2 C.C.No.4357/2018
JUDGMENT
The complainant has presented the instant complaint against the accused on 09.02.2018 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheque of Rs.9,20,000/-.
2. The facts given raised to this private complaint are as follows:
The complainant has submitted that, the accused was introduced to her by Amith Dadlich during March, 2017. The accused discussed regarding a Restaurant Project, he had undertaken which was stalled due to want of funds. The accused requested the complainant to extend financial help. In that regard, the accused entered into partnership with the complainant under the name of Utsav Food Joint which would secured the money advanced by the complainant. The accused had agreed to repay the investment with profit value. In this context, the complainant advanced Rsm7,24,424/- and paid rent for the premises to the land lord on behalf of accused at his request. Total principal amount aggregated to Rs.9,19,724/-. The accused acknowledged the liability and agreed to repay the same and assured that, the said amount would be paid and the formalities of dissolving the firm would be concluded. The accused was unable Judgment 3 C.C.No.4357/2018 to get the Restaurant Functional and the complainant expressed not to be associated with the accused and the accused agreed to discontinue the firm and treat the dues to the complainant as loan.
The complainant has averred that, initially, towards the part payment the accused has issued a cheque bearing No.168322 dated:19.08.2017 drawn on Corporation Bank, CHBS Layout, Vijayanagar, Bengaluru for sum of Rs.3 lakhs. However, the accused had requested her not to present the cheque and issued a cheque bearing No.485084 dated:22.09.2017 drawn on very same bank mentioned earlier for sum of Rs.9,20,000/- as full and final settlement. If repayment was delayed, he had agreed to pay 2% interest per month. On presentation, the complainant received intimation from his banker on 15.12.2017 stating that, cheque came to be dishonoured for the reasons "Funds Insufficient". On attempts were made by the complainant to contact the accused, he has been evasive. Hence, on 30.12.2017, the complainant gave legal notice to his residential address as well as forwarded to business address, thereby, calling upon the accused to pay the amount covered under the cheque within 15 days from the date of receipt of notice. Though, notice was addressed to the correct address, the accused was avoided and the same were returned, the accused had avoided with an Judgment 4 C.C.No.4357/2018 intent the delay to pay the legitimate dues with an ulterior motives.
Thereby, he committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
3. After receipt of the private complaint, this court took the cognizance and got registered the PCR and recorded the sworn statement. Since made out prima-facie grounds to proceed against the accused for the alleged offence, got issued process.
4. In response to the summons, the accused appeared through his counsel and obtained bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to him, wherein, he denied the same and claimed to have the defence.
5. To prove the case of the complainant, she choosen to examined her Power of Attorney holder by name Mr.Amit Dadhich as PW.1 and thorough him got marked Exs.P1 to P19. The PW.1 was subjected for cross-examination by the advocate for the accused.
6. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein the accused denied the same and answer given by him was recorded.
Judgment 5 C.C.No.4357/2018 In support of the defence, the accused himself was examined as DW.1 and got marked Ex.D1 and also subjected for cross- examination by the advocate for the complainant.
7. I have heard the detailed arguments of both side counsels. The accused counsel has also submitted his detailed written arguments.
8. On going through the rival contentions, based on the substantial evidence available on record, the following points have been arising for determination:
1) Whether the complainant proves beyond the reasonable doubt that, the amount covered under the Ex.P2-cheque is the existence of legally enforceable debt payable by the accused?
2) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?
3) What Order?
9. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Affirmative Point No.2 : In the Affirmative Point No.3 : As per final order, for the following:
Judgment 6 C.C.No.4357/2018
REASONS
-:UNDISPUTED FACTS:-
10. The fact that, the knowingness of complainant and accused are not in dispute. The fact that, the accused was the resident of door No.323, as made mentioned in his affidavit evidence as well as found in RPAD cover at Ex.P7 is not in dispute. The fact that, the accused has run Spark Fitness Studio along with its partner by name Mr.Jayanth in the building belongs to the landlady Dr.Beena Roopak is not in dispute. The fact that, in the said building as found in the cause title address of the complaint i.e., in Door No.[113/B], 3rd Floor, the accused was run the said business is not in dispute.
The fact that, the accused herein had filed suit for bare injunction against the landlady in O.S.No.5677/2017 as found in Ex.D1 is not in dispute. The fact that, the Ex.P2 cheque and signature found therein belongs to the accused is not in dispute. The fact that, the said cheque came to be dishonoured for the reasons "Funds Insufficient" and "Cheque Not Usable" as found in banker slips at Exs.P3 and P4 are not in dispute.
The fact that, the signature found in Ex.P10 is of the accused which specifically marked at Ex.P10(b) and (c) is not in Judgment 7 C.C.No.4357/2018 dispute. The fact that, as found in the office note, as per document at Ex.P11 the concern name Utsav Food Joint got registered in the office of the registrar of Trade on 30.05.2017 is not in dispute. The fact that, as per Ex.P12 the said firm got registered in the office of Registrar of Firms is not in dispute. As per Ex.P12 the said Firm was registered on 30.05.2017 is not in dispute. As found in Ex.P13, seeking for registration of Utsav Food Joint submitted the application to the Registrar of Firms is not in dispute. The fact that, as per Ex.P14 the complainant and accused being partners have signed the application in Form No.1 and placed it for registration of partnership firm is not in dispute. The fact that, as found in Ex.P15 the partnership deed dated:25.04.2017 came to entered in to between complainant and accused is not in dispute.
The fact that, Ex.P15 is the certified copy of partnership deed wherein reflects the signature of the complainant and accused also not in dispute. As found in Ex.P16 the certified copy of Aadhaar Card, it is pertinent to the complainant and whrein,it reflects her address is not in dispute. As per Ex.P17 the Aadhaar Card is of the accused, which revealed the address of the accused is not in dispute. The fact that, the address found in Judgment 8 C.C.No.4357/2018 Ex.P17 in the Aadhaar Card is par with the Ex.P7 unserved R.P.A.D., cover is not in dispute.
The fact that, as found in Ex.P18 the alleged partnership business of the complainant and accused by name Utsav Food Joint got registered and wherein, the complainant and accused gave the respective addresses also not in dispute. The fact that, as per Ex.P19 the complainant had submitted income tax returns for the assessment year of 2018-19 very particularly on 31.08.2018, after filing of present case is not in dispute.
11. POINT NOs.1 and 2: Since both the points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.
In order to prove the case of complainant, she choosen to examined her Power of Attorney Holder by name Mr.Amit Dadhich as PW.1 and filed affidavit by reiterating the complaint averments in toto, and produced the documents at Exs.P1 to P19, they are:
a) Ex.P1 is the Power of Attorney dated:03.09.2018 executed by complainant herein in favour of one Mr.Amit Dadhich in order to prosecute the above matter on behalf of complainant herein.
b) Ex.P2 is the cheque bearing No.485084 issued by the accused for sum of Rs.9,20,000/-
dated:22.09.2017, drawn on Corporation Bank, CHBS Layout, Vijayanagar, Bengaluru.
Judgment 9 C.C.No.4357/2018
c) Ex.P2(a) is the alleged signature of accused.
d) Exs.P3 and P4 are the Bank Memo dated:15.12.2017.
e) Ex.P5 is the Legal Notice dated:30.12.2017.
f) Exs.P6 & P7 are the Postal receipts.
g) Exs.P8 & P9 are the unserved R.P.A.D covers.
h) Exs.P8(a) & P9(a) are the legal notices at Exs.P8 & P9.
i) Ex.P10 is the capital contribution investment letter dated:22.06.2017 entered into between complainant and accused.
j) Ex.P10(a) is the statement of investment pertaining to complainant herein.
k) Ex.P10(b) to P10(d) are the signatures of accused and witness.
l) Ex.P11 is the certified copy of office note letter pertaining to office of the Registrar of Trade dated:30.05.2017.
m) Ex.P12 is the certified copy of Form No.C i.e., acknowledgment of Registration of Firms issued by Registrar of Firms in favour of Utsav Food Joint.
n) Ex.P13 is the certified copy of letter regarding register for firm.
o) Ex.P14 is the certified copy of Form No.1 i.e., application for registration of Firm by the name under the Indian Partnership Act, 1983.
p) Ex.P15 is the certified copy of partnership deed dated:28.04.2017 entered into between complainant and accused.
q) Exs.P16 and P17 are the certified copies of Aadhaar Cards pertaining to the complainant and accused.
r) Ex.P18 is the certified copy of trade register extract issued by Registrar of Firms and Judgment 10 C.C.No.4357/2018
s) Ex.P19 is the Indian Income Tax Return acknowledgment pertaining to complainant herein for the assessment year 2018-19.
12. The PW.1 was subjected to the cross-examination by the advocate for the accused. In support of the case of complainant through his counsel has produced the citations and relied upon same, they are;
a) Crl.A.No.63 of 2012
b) Crl.A.No.664 of 2012 (SC)
c) Crl.A.Nos.230-231 of 2019 (Sc)
13. After detailed cross-examination done by the advocate for accused to the PW.1, the complainant got closed her side. Thereafter, whatever the incriminating evidence made against the accused was read over and explained to him as required under Section 313 of Cr.P.C., wherein, he denied the same and gave his statement that:
"ನನನ ಪರರದಯಯದಗ ಅಕಯಟ ಮನಖಯತರ ವವವಹರಸಲಲ. ನನನ ಪರರದಯಯದಗ ವವವಹರಸಲಲ. ನನನ ಆಕಗ ನಪ-1 ಚಕಕನನ ನ ನನಡಲಲ. ನನನ ಪರರದಗ ಚಕನ ಮತತ ನನಡಲನ ಬಧವನಲಲ."
14. In order to prove the defence of the accused, the accused herself choosen to entered into witness box and examined as DW.1 on oath and filed affidavit evidence.
Judgment 11 C.C.No.4357/2018
15. No doubt, in this case, the accused was entered into witness box and filed affidavit evidence. The filing of affidavit by the accused in lieu of his probable defence is not opposed by the complainant. Mere because of she not sought permission under Sections 315 and 316 of Cr.P.C., it does not a ground to out-rate reject the probable defence set out by the accused. Mere because Section 145(1) of Negotiable Instruments Act does not expressly permit the accused to filed affidavit evidence, it does not mean that, the court cannot allow the accused to give his evidence on affidavit. By applying the same analogy, unless there is just and reasonable ground to refuse such permission, there is no express bar on accused to give evidence on affidavit.
That apart, in a judgment passed by the Hon'ble High Court of Karnataka dated:13th Day of February 2020 in a case between Jagadeesh Hiremath and R. Venkatesh in Criminal Appeal No.907 of 2017 A/W Criminal Appeal No.908 of 2017 is pleased to observed that, in view of the orders of this court in Criminal Petition No.9331/2017 C/w Criminal Petition No.9332/2017 dated:
02.07.2019, wherein following the law laid down by the Hon'ble Supreme Court in Indo International Ltd., & Another V/s. State Of Maharasthtra & Another, 2005 Crl.L.J.208, it is held that, " The court dealing with a complaint under Section 138 of the said Act of 1881 had Judgment 12 C.C.No.4357/2018 an option to take evidence of the witnesses on the side of the prosecution as well as evidence of the accused and the defence witnesses, if any on affidavit"
16. Wherein, the accused in his affidavit evidence has contended that, he was residing in the address at No.323, VII Cross, New Kavika Layout, Mysuru Road, Bengaluru and stating that, he knew the facts of the present case.
The accused has further contended that, he was running a Gym in the name of Spark Fitness Studio along with one partner by name Mr.Jayanth in the building bearing No.(113/B), 3rd Floor, 30 Feet Road, Hampinagar, Vijayanagar, Bengaluru-40 from its landlady by name Dr.Beena Roopak. At the time of he took the said premises for run the Gym on rent basis, he handed over some signed cheques and blank paper to the landlady as a security. It was informed by her to the accused that, those cheques will be returned back at the time of he vacate the premises and on good faith he had agreed for the same.
The accused has further contended that, dispute arose between him with landlady increasing in rent for the Gym premises, he was threatened forcefully thrown out of the premises. Apprehending any illegal ouster without following the Judgment 13 C.C.No.4357/2018 due procedure, he instituted suit for Permanent Injunction against the landlady in O.S.No.5677/2017 before the Hon'ble City Civil Judge, Bengaluru.
The accused has also contended that, after vacate the premises some of the Gym items were not allowed to be taken out by the landlady on the ground that, he not paid the arrears of rent and stated that, she would return the Gym equipments, signed cheques and blank papers after settlement of dues. Despite several follow up were made, she went on gave one or other reasons to return the cheques and papers, but she failed to return the same, stating that, it was misplaced somewhere.
The accused has also contended that, the complainant without any supporting documents and cogent materials brought the false case. The complainant herself stated that, she has paid amount to the landlady by name Dr.Beena Roopak and she has not paid any money to the accused and there is no monetary transaction between her and accused. Both have colluded each other and misused his cheques and other blank signed papers given to the landlady and brought the false case for making illegal claim from him. Hence, he is not liable to pay the amount covered under the cheque to the complainant. The amount claimed by the Judgment 14 C.C.No.4357/2018 complainant with the questioned cheque is not the legally enforceable debt. The complainant got misused his cheques and other papers given to his landlady. The transaction alleged that, it was towards some Hotel transaction is not true and in that way the complaint is require to be dismissed from innocent charges made against the accused. Hence, he prayed for acquittal.
Apart from the accused also choosen to produced the document at Ex.D1. It is:
a) Ex.D1 is the certified copy of plaint in O.S.No.5677/2017 filed by M/s. Spark Fitness Zone and others against the complainant herein and another before the Hon'ble City Civil Judge at Bengaluru.
The DW.1 was also subjected to the cross-examination by the advocate for the complainant in detail.
17. While appreciate the materials on records and evidence, this court has gone through the decisions stated supra apart from the other decisions.
18. On going through the rival contentions of the parties, it made clear that, the accused in this case has seriously attack on the claim put forth by the complainant. On going through the materials it discloses, the complainant has brought the present case against the accused based on the questioned cheque at Judgment 15 C.C.No.4357/2018 Ex.P2. Therefore, it needs to draw the presumption as per Sections 118 and 139 of Negotiable Instruments Act. As per Section 118(g), it shall be presume that, unless the contrary is prove, the holder of the cheque, the complainant received the cheque for discharge of legal liability. This presumption is rebuttable. Accordingly, Sections 139 and 138 of Negotiable Instruments Act, it also requires to presume that, cheque was drawn for discharge of liability of drawer, it is presumption under law. Therefore, it made clear that, by virtue of the above said sections stated, it made clear that, it requires to draw statutory presumption in favour of complainant that, in respect of discharge of existence of legally recoverable debt, the accused got issued the Ex.P2-cheque unless and until contrary prove. Therefore, as per those sections, it made clear that, it is the initial onus on the accused to prove his case based on the principles of 'Preponderance of Probabilities'.
It is require to cite the decision reported in AIR 2010 SCC 1898, in a case between Rangappa V/s Mohan. Wherein, the Hon'ble Apex Court pleased to observe that, the obligation on the prosecution may be discharged with the help of presumption of law or facts unless the accused adduce evidence showing the reasonable probability of non-existence or presumed fact.
Judgment 16 C.C.No.4357/2018 Wherein also it was pleased to observed that, the accused can prove the non-existence of consideration by raising probable defence. If accused is able to discharge the initial onus of proof of showing that, the existing of consideration was improbably or adverse or the same was illegal, the onus would shift to the complainant, who will be obliged to prove it as a matter of fact, and upon its failure to prove would dis-entitle his to grant the relief on the basis of Negotiable Instruments Act. The burden on the accused of proving the non-existence of consideration can either direct or by bringing on record the preponderance of probabilities by referring to the circumstances upon which, he relies could bare denial of passing consideration apparently does not appears to be any defence. Something which is probable has to be brought on record for getting benefit of shifting the onus of proving to the complainant. To disprove the presumption, the accused has to bring on record such facts and circumstances upon the consideration of which the court may either believe that, consideration did not exist or its non-existence was so probable that, a prudent man would, under the circumstances of the case, act upon that, it did not exist. Therefore, it made clear that, the accused need to take the probable defence mere denial is not enough.
Judgment 17 C.C.No.4357/2018 That apart, in a decision reported in ILR 2006 KAR 4672, in a case between J.Ramaraj V/s Hiyaz Khan. Wherein, it was pleased to observed that, mere denial of issuing cheque, whether is sufficient to discharge the initial burden is to be looked into. In that dictum, it was pleased to held that, mere denial of issuing cheque would not be sufficient as it is time and again noted that, once the cheque issued duly signed by the accused, the presumption goes against him as per Section 139 of Negotiable Instruments Act.
19. On going through the provisions referred supra, it made clear that, whereas the presumption must prove that, guilt of accused beyond the reasonable doubt. The standard or proof so as to prove a defence on the part of the accused is 'Preponderance of Probabilities'. Inference of 'Preponderance of Probabilities' can be drawn, not only from the materials brought on record by parties, but also by reference to the circumstances upon which he relies.
20. On going through the above authorities as well as dictums, it made clear that, it is the initial burden on the accused to prove his probable defence in order to rebut the statutory presumption as well as the case put forth by the complainant. On going Judgment 18 C.C.No.4357/2018 through the primary contention taken by the accused by stating that, he gave cheques and blank papers to the landlady by name Dr.Beena Roopak, while he took the Spark Fitness Studio Gym on rent as a security with the specific understanding that, it should be return to the accused while he quit premises. But the said landlady threatened the accused to forcefully quit him from Gym premises by apprehending the same, he instituted a suit in O.S.No.5677/2017 as per Ex.D1 against the said landlady. By stating so, the accused has placed his defence by strongly contending that, as alleged by the complainant, he not dealt with her for any business transaction and hence, he not issued the questioned cheque at Ex.P1 and not liable to pay the same. But specifically contended, the said landlady Dr.Beena Roopak colluded with the complainant herein for making illegal gain by misusing his cheque at Ex.P1 and filed the false case.
21. It is pertinent to note that, whatever the defence taken by the accused as to handed over those cheques or any other signed blank papers to his landlady as a security definitely, it should be revealed in the previous suit instituted by him as per Ex.D1. On meticulous perusal of the Ex.D1 it made clear that, the said suit was filed by him on 19.08.2017. The questioned cheque bares the date:22.09.2017 which means, prior to the complainant Judgment 19 C.C.No.4357/2018 present the questioned cheque for encashment on 22.09.2017, the accused already instituted the suit at Ex.D1. Therefore, it made clear that, if at all, it was his serious defence made against the landlady Dr.Beena Roopak, it is him to narrate those allegations in the pleading which compel the accused to institute bare injunction suit. When the said landlady if at all, by hold his signed blank cheque or signed blank paper as security definitely, he must mind those factum much earlier, at least, he could have pleaded in Ex.D1, but the same is lapse. Therefore, it is so difficult to accept the contention of the accused that, he gave signed blank cheque includes questioned cheque at Ex.P1 and signed blank papers to Landlady by name Dr.Beena Roopak. From the point of previous statement given by the accused by way of pleading the facts and circumstances which compelled him to initiate proceedings against the landlady definitely, those factum needs to be plead, but for the reasons better known to him, he not did so. At least, on the subsequent hearing date, if he apprehended about his misuse of signed blank cheques and signed blank paper, definitely, he had an opportunity to insert those factum in his pleading by way of amendment, but he did not do so. Therefore, whatever the defence raised by the accused in the present case by way of production of Ex.D1, it does not suffice Judgment 20 C.C.No.4357/2018 his probable defence in rebut the statutory presumption as well as the facts and circumstances narrated by the complainant.
22. Thus from the cross-examination of PW.1 and examination in chief of DW.1, it is crystal clear that, Ex.P1 cheque belongs to accused and signature marked at Ex.P1(a) is that of accused. When the accused admits the cheque and signature on the cheque, then the initial presumption arises in favour of complainant under Section 118(a) of Negotiable Instruments Act that, complainant is holder of cheque Ex.P1 for valid consideration. Further, from the perusal of records, it reveals that complainant has complied the provisions of Section 138 of Negotiable Instruments Act. Hence, the initial statutory presumption under Section 139 of Negotiable Instruments Act arises in favour of complainant that, accused has issued the cheque Ex.P1 for discharge of legally recoverable debt. The initial presumptions arisen in favour of complainant under Sections 118(a) and 139 of Negotiable Instruments Act are rebuttable presumptions, and accused is at liberty to rebut the presumptions by cross-examining PW.1 or by adducing the defence evidence or by both.
Judgment 21 C.C.No.4357/2018
23. From the principle laid down in the decision reported in AIR 2010 SC 1898 between Rangappa V/s. Mohan, it is crystal clear that, when accused has admitted the cheque and signature made on cheque, the burden lies on the accused to prove that, Ex.P1 cheque was not issued for discharge of legally recoverable debt in favour of complainant. To prove this fact accused has choosen to cross-examine PW.1 and also adduced his defence evidence and in support of his defence accused has got marked Ex.D1 .
24. First of all, the accused has failed to made mentioned in the pleading of original suit referred supra that, the signed blank cheque and blank signed paper taken by the landlady- Dr.Beena Roopak, which includes the cheque at Ex.P1 and they have colluded each other and filed the present case, definitely, the accused by way of filing Ex.D1 suit could have cautioned the landlady to avoid misuse of his own security documents, if it was true. Since, he not pleaded it needs to draw the inference that, since accused not pleaded those factum was not disputed earlier and for the sake of defence the accused in the present case has raised as such, therefore, much reliance without any base cannot placed on the evidence of DW.1, as to he handed over those signed blank cheques and signed blank paper to the then landlady. On going through the defence taken by the accused in Judgment 22 C.C.No.4357/2018 his affidavit evidence, it does not revealed any other specific grounds, under which compelling circumstances he gave questioned cheque to the then landlady by name Dr.Beena Roopak and she colluded with the complainant had filed the false case against the accused. In that regard noting has elicited from the mouth of the PW.1 to support the defense of the accused.
25. That apart, the accused also pleaded in the affidavit evidence that, when he vacate the Gym premises, the landlady not let him to taken out his instruments and stated, she would return Gym equipments, signed blank cheques and signed blank paper to the accused, after he settled the dues. Despite, he made several follows, she not returned the same. If at all, as he contended in his affidavit evidence, he quit from the rented premises definitely, it is him to taken back his Negotiable Instruments or the Gym equipments along with the signed blank paper by clear her dues. If at all, definitely, he quit from the rented premises not returned those document to the accused definitely, he could have initiate necessary legal action compelling her to return the Negotiable Instruments in order to avoid misuse. In that regard, he not brought the said landlady as to prove that, she withheld those documents and equipments and informed him that, it was misplaced. In order to avoid to brought the landlady before Judgment 23 C.C.No.4357/2018 this court of law, the accused has not produced any satisfactory evidence or grounds to avoid his responsibility.
26. The advocate for the complainant has fully cross-examined the DW.1. During the course of cross of DW.1, it was suggestion made to him that, for the purpose of Utsav Food Joint business, after the accused met the complainant and in turn, he got requested her to invest her share of Rs.7,24,424/- as a partner. But the accused has denied the said suggestion. Even he denied the suggestion made that, the accused was intended to brought the complainant as one of the partner to run Utsav Food Joint Hotel. Even it was suggested to him that, in that regard, he had entered into registered agreement with the complainant, but he denied the same. He denied the suggestion that, apart from the complainant had invested the amount as her share as per the agreement, since accused had no money to invest, he instructed her to pay the rentals, in that regard, there were conversation were made between complainant and accused were denied by the DW.1. He also denied the suggestion made to him that, for the purpose of bare the expenses of construction work of the said hotel is also require to be borne by the complainant is been denied. Accordingly, the complainant was invested the money at the request of the accused for the tune of Rs.9,19,724/-. Even he Judgment 24 C.C.No.4357/2018 denied the suggestion that, if the accused was not able to return the said money to the complainant, he undertooks to pay the monthly interest at 2% is also not denied by him.
27. The DW.1 has categorically admitted that, during February, 2018 by compromising the matter with the then landlady, he quit the possession, but the suggestion made to him that, since the accused was not prosecuted the matter, case was dismissed on 26.06.2018. In order to show that, the said suit came to be dismissed for non-prosecution, the complainant has not produced any evidence before this court nor extract any admission from the mouth of DW.1. The DW.1 has deposed that, it does not remember that, whether he was pleaded in Ex.D1 that, he gave signed blank cheques or signed blank papers to the then landlady by name Dr.Beena Roopak or not? When accused has defend his case, with certain set of facts, the accused cannot be neutral bo depose so. The very evidence of the accused creates doubts as to his defense.
28. The DW.1 in his cross-examination has categorically admitted that, he resides in the address made mentioned in his affidavit evidence, which is none other than bearing Door No.323. It was suggested him to that, though he resides in the address Judgment 25 C.C.No.4357/2018 made mention at Ex.P7, wantonly he denied the same. He also denied the suggestion that, after typed the Ex.P10 he got affixed his signature and those contents were typed by the accused himself is been denied. He denied the suggestion that, in respect of making payment of Rs.9,20,000/-, the accused gave Ex.P2 cheque to the complainant.
29. On going through the cross of DW.1 it made clear that, though accused has failed to prove his probable defence. In the affidavit evidence of the accused, he denied the liability covered under the questioned cheque at Ex.P1. His evidence on appraisal it made clear that, if at all he had issued questioned cheque and other cheques along with blank document to his landlady as a security definitely, as discussed earlier could have been raised in the original suit inter-se filed by the accused against his landlady for bare injunction, but the same is lapse. Therefore, the documentary evidence and oral evidence of the accused fails to manifest his probable defence, under which compelling circumstances he got issued questioned cheque to the complainant.
30. That apart, the accused has cross-examined the PW.1, wherein also no specific suggestion made to him or elicited any Judgment 26 C.C.No.4357/2018 contra statement from his mouth against the case of complainant in order to skip the liability of complainant. Though, it is the initial burden on the accused to prove his probable defence to rebut the case of complainant in order to avoid the liability to pay the amount covered under the cheque, he fails to demonstrate his defence. Thereby, the statutory presumption raised under Sections 118 and 139 of Negotiable Instruments Act, initially in favour of complainant stands proved. However, to prove the case of complainant with regard to the partnership business entered into between complainant and accused, as she pleaded, she got produced documents at Exs.P11 to P19. While in the cross- examination of PW.1, it was suggested to the PW.1 that, since no such partnership deed were entered into between complainant and accused as alleged by the complainant, the said document were not been placed. However, the PW.1 has denied the said suggestion and subsequently, got obtained the certified copy of the documents at Exs.P11 to P19 and produced before the court. Which clearly manifested that, there were joint venture with regard to conducting of Utsav Food Joint held between complainant and accused. Exs.P11 to P15 documents clearly revealed the rights and liabilities accrued to the complainant by virtue of registration of partnership deed. Earlier the accused was Judgment 27 C.C.No.4357/2018 suggested to PW.1, since no such partnership business were entered into, complainant has not produced any document.
31. After the complainant became produced Exs.P11 to P15, which revealed the act of complainant and accused entered into the partnership deed with regard to run Utsav Food Joint, without any base the accused has suggested it was got created in collusion with the Chartered Accountant. When the documents obtained through the statutory body is been produced by the complainant at Exs.P11 to P19, which clearly manifest the running of partnership business between complainant and accused, to disbelieve its genuineness, no suggestion were made. The Exs.P11 to P18, clearly disclosing the risk of the complainant and accused in entered into to the registered partnership business in the name of Utsav Food Joint, therefore, the same got registered in their name. Even both the parties shall act in accordance with the partnership deed produced at Ex.P15 registered on 28.04.2017.
32. No doubt, as per the said joint venture, profit and loss should be equal share between complainant and accused and forth with pay all monies, cheques and Negotiable Instruments received by the parties on the account of firm. The accused Judgment 28 C.C.No.4357/2018 contrary to the said document has denied the entered into partnership business. The complainant has projected this case that, the accused unable to get the restaurant functional, despite, she got invested the amount advanced Rs.7,24,424/- and rentals paid to the landlady on behalf of accused at his request including the same, she got invested Rs.9,19,724/-. Since, the accused unable to genuineness the restaurant functional, the complainant expressed not be associated with the accused and agreed to discontinue from doing of the said business, the accused got issued the earlier cheque for Rs.3 lakhs bearing No.168322 dated:19.08.2017, the same got not presented at the request of accused and he got issued questioned cheque at Ex.P1 for sum of Rs.9,20,000/- dated:22.09.2017, the same also got dishonoured and despite issuance of notice, the accused has not paid money.
33. On going through the pleading of the complainant, she is claiming advanced Rs.7,24,424/- and paid rentals, in all she got invested the principal amount of Rs.9,19,724/-. During the course of cross of PW.1, he stated that, in respect of the transactions entered into between complainant and accused go maintained documents. Even the complainant has contended that, the accused himself got executed the Ex.P10 and P10(a) by Judgment 29 C.C.No.4357/2018 undertaking his liability with regard to the amount invested by the complainant, by agreed the mentioning of amount at Ex.P10 and P10(a), for making payment of the said money, the accused got issued the cheque.
34. The PW.1 during her cross-examination has categorically stated that:
"ನನನ ಮತನತ ಆರರನಪ ಚರರಸ ನಪ-10(ಎ) ಬಯಡವಳದ ಪಟಟಯನನ ನ ತರರಸದವ. ಸಕಯನ ಸಸತತ ಮನಯದನವರದನ, ಸದರ ದಖಲಯನನ ನ ಆರರನಪಯ ಇ-ಮನಲಐಡಗ ಕಳಹಸ ಕರಟಟದನಯದನ ನನಡಯನತತರ. ಆ ರನತ ರವದನ ವವರ ಕಳನಹಸಲಲ ಎಯದರ ಸರಯಲಲ."
35. As per the say of PW.1, Ex.P10(a) the investment list got prepared by the complainant and accused. The PW.1 volunteers that, she got sent the particulars through e-mail ID of accused and then accused himself got prepared Ex.P10 and P10(a). Though complainant got produced the Ex.P10 and its attached document, which revealed the investment made by the complainant through the accused in respect of Utsav Food Joint. Therefore, it made clear that, in order to disbelieve its genuineness except denial, the accused has not suggested as to the contents of Ex.P10 along with its attachment, why the same should not be reliable, in that regard to test the genuineness no suggestion were made. The Judgment 30 C.C.No.4357/2018 PW.1 in his further cross-examination has categorically stated that, the amount made mentioned in the Ex.P10(a) list were invested by the complainant, he had document which is none other than account statement and undertaken that, he has no impediment to produce the same before this court. Before production of the said Statement of account etc., it was suggested to the PW.1 that, since PW.1 did Chartered Accountant profession, he got created the Ex.P10(a). But PW.1 has denied the same. On heard the suggestion made by the advocate for the accused, as to denial of investment made by the complainant in the name of accused in the joint venture, the complainant on the subsequent hearing dates got able to produce the documents at Exs.P11 to P10.
36. As discussed earlier, the Exs.P11 to P18 are pertaining to the Utsav Food Joint, the joint venture commenced by the complainant and accused. Against the existence of the document registered in the office of statutory body, mere denial is not enough to suspect the genuineness of Exs.P11 to P18. By way of production of those documents, the complainant has successfully proved the joint partnership business started by the complainant and accused. The PW.1 has categorically admitted, he got the statement of account and himself sent through its particulars to Judgment 31 C.C.No.4357/2018 the accused through e-mail I.D. thereafter, Ex.P10 and its attached document were prepared by the accused and admitting his liability, by affixing his signature got issued the same to the complainant and to pay the amount covered therein, accused got issued the Ex.P1-cheque. It is significant fact to note that, the complainant got produced the Ex.P19 income tax returns along with its attachments.
37. On close perusal of the same, wherein, it has been enclosed with certain documents which discloses, current assets. Wherein, it has mentioned that, loans and advances made to Praveen.K was Rs.9,19,724/-. Thereafter, when next document which is none other than the cash book pertaining to the period from 01.04.2017 to 31.07.2017 stood in the name of Manju Sharma, who is the complainant herein. It has been clearly admitted by both the parties that, as agreed they have not started Utsav Food Joint. Both the parties have admitted business, not yet been commenced, but the complainant has contended, she had made investment at the instance of the accused on his behalf and alleged to be paid the huge amount of Rs.9,19,724/- including the advance amount and payment of rentals to the landlord. In that regard, the complainant along with Ex.P19 the entries of cash book maintained by her has been produced.
Judgment 32 C.C.No.4357/2018
38. On meticulous perusal of the Ex.P19 along with its cash book, it made clear that, the complainant has maintained record from 01.04.2017 till 12.07.2017. On close perusal of the said document it discloses, the investment made by the complainant for the tune of Rs.5,65,270/-. On carefully going through the cash book entries attached to Ex.P19, she had maintained the said documents with regard to the payment made to Praveen.K in respect of Utsav Food Joint. On going through the said document it revealed, the payment made by the complainant to the accused in respect of their joint business. On close perusal of its particulars, it is made mentioned that, she has been paid the amount commencing from 27.04.2017, including purchase of stamp paper and payment made to the Civil work also in respect of the said building.
39. On close perusal of the said document, it is tallied with Ex.P10. Since, the complainant got paid the huge amount as per the said cash book and the payment made by the complainant was realized by the accused, then since the said business was not continued or started, he got executed the Ex.P10 declaration. On going through the particulars made mentioned in Ex.P10(a) coupled with the particulars made mentioned in cash book entries attached to Ex.P19, it does not makes any differences with regard Judgment 33 C.C.No.4357/2018 to the payment made by the complainant in the said business on behalf of the accused.
40. It is significant fact to note that, the accused though cross- examined the PW.1 on the relevant documents at Exs.P10 and P19, no specific suggestion were made through him as to denial of his liability with regard to the payment made by the complainant. If the accused has admitted the contention of the complainant as to started the business of Utsav Food Joint being partners, equally they have invested the amount contrary to the particulars made mentioned in Ex.P10(a) as well as Ex.P19 definitely, it is the accused needs to suggest to PW.1, but nothing has been stated. On going through those material documents which discloses, the payment made by the complainant and does not discloses the payment made by the accused. Since, it is the joint venture continued by the complainant and accused definitely, if the accused had invested the money contrary to the say of complainant, for the profit and loss equally they are held responsible. Contrary to the same, the accused has denied the very contention of the complainant, therefore, to disbelieve the self signed document of the accused at Ex.P10, the accused has not produced any acceptable evidence.
Judgment 34 C.C.No.4357/2018
41. On going through the Ex.P10 it discloses, particulars of investment made by the complainant in Utsav Food Joint. Wherein also discloses, the amount paid through cash, cheque as well as the particulars of the loan. On meticulous perusal of the Ex.P10 the self signed document of the accused it revealed that, cash of Rs.5,39,270/- and payment of Rs.1,54,137/- by way of cheques and loan of Rs.1,95,300/- is been reflected. That apart, it also added with the amount of Rs.17,017/- and Rs.14,000/- in respect of the electric wire and electrical item in all it has been mentioned the total sum of Rs.9,19,724/-. It is significant fact to note that, with regard to the payment made by way of cheque as well as loan, as found in Ex.P10(a) does not revealed in the cash book produced at Ex.P19. The other particulars with regard to cash paid by the complainant in the name of his firm as investment is been reflected in the cash book. In the Ex.P10(a) the amount paid through cheque as well as loan has been reflected, in all it has been mentioned Rs.9,19,724/-. If at all, the accused is not signed the said document, definitely, its genuineness will be suspected. However, the accused has admitted his signature found in Ex.P10 and P10(a) as of his and denied its contents, it is not safe rely upon to his mere denial the contents are not correct. There is no specific suggestion as to the Judgment 35 C.C.No.4357/2018 columns at Ex.P10(a), wherein amount made mentioned therein. He clearly admitted his signature, but denied its contents in order to avoid his liability is not enough to discharge the reverse burden.
42. It is pertinent to note that, the Ex.P10(a) discloses the investment made by the complainant in Utsav Food Joint. The PW.1 in his cross-examination has deposed that, necessary particulars were send to the accused through his e-mail, then he got print and put his signature by admitting his liability to repay the amount invested by the complainant by treating as loan, since the accused has not able to run the hotel business in the name of Utsav Food Joint. It is pertinent to note that, Ex.P10 coupled with cash book entries produced along with Ex.P19 made it clear that, from 27.04.2017 onwards the complainant has been paid the amount to the accused. It is discloses that, till 19.06.2017 over the period of 3 months, the complainant has been paid money. With regard to the payment of rentals or the loan as mentioned in Ex.P10 both the parties have not furnished any particulars. In order to made investment as found in cash book as well as entries made in Ex.P10(a) definitely, there should be some premises requires, which is none other than the premises cited by the complainant and agreed by the accused to run the Utasav Food Joint business. Therefore, unless obtained the premises on lease Judgment 36 C.C.No.4357/2018 or rent basis, without paying rentals question of run the business does not arise. If accused is been admitted as to an effort made by him, with the complainant, with regard to opening the Utsav Food Joint as per the registered document produced at Exs.P11 to P15, and question the calculation made by the complainant as the alleged investment made by her through the accused, then it would be different. But, he disputed the alleged investment made by the complainant baldly, without any specific grounds, much reliance cannot be placed on the probable contention of the accused. The accused has not taken pain to specifically deny the entries made mentioned in the Ex.P10(a). The complainant has based the said document and claiming that, in respect of the amount covered therein, the accused got issued the questioned cheque. Though, statutory presumption supports the case of the complainant, in order to suspect the genuineness of the transaction raised by the complainant, the accused needs to create doubtful circumstances, but failed. In respect of true transaction held between complainant and accused, simply denied the document produced by complainant is created one. Unless the accused has questioned and raised the doubtful circumstances with regard to the each and every entries found in Ex.P10 and P10(a) as well as documents attached to Ex.P19 Judgment 37 C.C.No.4357/2018 court sou-moto suspecting the genuineness of the entries does not arise. It is the accused needs discharge initial burden and disprove the genuineness of those documents in order to avoid his liability.
43. No doubt, the payment made by the complainant through cheques and loan advance as found in Ex.P10(a) is not reflected in the cash book at Ex.P19. In order to consider the equal responsibility of the complainant and accused, being a partners with regard to share the profit and loss the accused has not put forth any satisfactory evidence or explanation. Therefore, it is the consider opinion of this court that, to disbelieve the genuineness of documents produced by the complainant, the accused has not created any doubtful circumstances. Therefore, from the Ex.P10 as well as Ex.P19 coupled with other documents pertaining to the Utsav Food Joint it made clear that, the complainant and accused were started the said joint partnership business and for the reasons better known to them, they have un-pleaded or not started the said business despite made the investment. Therefore, the contention of the complainant needs to be accepted, as she not wishes to associate with the accused to continue the business, the accused came forward to pay money Judgment 38 C.C.No.4357/2018 got issued the Ex.P1-cheque. The accused has not disputed his signature found in Ex.P1-cheque.
44. No doubt, on seeing the hand writing it discloses the fillings are not made from the hand writing of the accused. Because of that, straightaway cannot suspect due execution and issuance of the cheque. As per Section 20 of Negotiable Instruments Act, it made clear that, by giving authorization to the complainant, could have been handed over the blank cheque with the signature, is not debar the right of complainant invoking the provisions of Negotiable Instruments Act. Since, the accused has utterly failed to prove the factum that, he gave questioned cheque along with other documents to the landlady as a security definitely, it needs to be draw the necessary inference that, the accused got issued the questioned cheque to the complainant for discharge of existence of legally recoverable debt.
45. On going through the cross-examination of PW.1, though accused has attack on the claim of complainant, the suggestion made to him that:
"ನಪ-14 ರ ಪಲನದರಕ ವವವಹರ ಸಯಸಸ ಬಡಗ ಕಟಟಡದಲತನತ. ಡತ ವನಣ ರರಪಕ ಆ ಕಟಟಡದ ಮಲನಕರನ. ಆ ಬಗಗ ಬಡಗ ಕರರನ ಮಡಕರಯಡದವ. ಆ ರನತ ರವದನ ಬಡಗ ಕರರನ ಮಡಲಲ Judgment 39 C.C.No.4357/2018 ಮತನತ ಪಲನದರಕ ವವವಹರ ನನನ ಆರಯಭಸರಲಲಲ ಎಯದರ ಸರಯಲಲ. ಆರರನಪಯ ಪರವಗ ನನನ ಬಡಗಯನನ ನ ಪವತಸದ ಬಗಗ ದಖಲಯನನ ನ ಹಜರನಪಡಸಲಲ. ಸಕ ಮನಯದನವರದನ ನನನ ಬವಯಕನ ಆರರನಪಯ ಪರವಗ ನನನ ಬಡಗಯನನ ನ ಪವತಸದನಯದನ ನನಡಯನತತರ. ಆರರನಪಯ ಪರವಗ ನನನ ನ ಆ ರನತ ಪವತಸಲಲ. ಆ ರನತ ಸನಳನ ಬಡಗಯನನ ಳ ಹನಳನತತದನಯದರ ಸರಯಲಲ. ನಪ-10(ಡ) ಸಹ ಆರರನಪಯ ಸನನಹತ ಜಯಯತ ರವರದಗದ. ನಪ-10 ಸಸಷಷಸಕರಯಡ ದಖಲರದ ಕರಣ, ಆತನನನ ನ ಉದಶಪವರಕವಗ ಹಜರನಪಡಸಲಲ ಎಯದರ ಸರಯಲಲ. ನನನ ಚಟರಡರ ಅಕಯಟಯಟರವರರಯದಗ ಶಮನಲಗ ನಪ-1 ರಯದ ನಪ-
19 ದಖಲಗಳನನ
ನ ಸಸಷಷಸಕರಯಡನ ನನನ ಅನನಕರಲತಗ ತಕಕಯತ
ಬಳಸಕರಯಡದನಯದರ ಸರಯಲಲ. ನನನ ಮತನತ ಕಟಟಡದ ಮಲನಕರ
ನಡನವನ ವವವಹರ ವವದಕಕ ಸಯಬಯದಪಟಟಯತ, ಆರರನಪಯ ಚಕಕನನ ನ ದನರನಪಯಗಪಡಸಕರಯಡದನಯದರ ಸರಯಲಲ. ದರರನಲ ಆರರನಪಸರನವ ಹಣವನನ ನ ಡತವನಣ ರರಪಕ ರವರಗ ನನನ ಕರಟಟದನ ವನತ, ನನನ ಆರರನಪಸದಯತ ಆರರನಪಗ ರವದನ ನ ನನಡಲಲ ಎಯದರ ಸರಯಲಲ. ಕನರನನ ಬದದವಗ ಆರರನಪ ಮತತವನನ ನನಗ ರವದನ ಮತತವನನ ನ ದರರನಲ ಆರರನಪಸದಯತ ನನಡಲನ ಬಧವನಲಲ ಎಯದರ ಸರಯಲಲ."
46. On going through the said testimony of PW.1, it made clear that, the accused has indirectly admitted that, whatever the amount made mentioned in the complaint were given to landlady Dr.Beena Roopak not to the accused. But the PW.1 has denied Judgment 40 C.C.No.4357/2018 the same. It was suggested to PW.1 that, as alleged by the complainant accused is not liable to pay the amount claimed by the complainant. In that suggestion it made clear that, the complainant has admitted whatever the amount paid by the complainant to Dr.Beena Roopak, it was the amount payable by complainant not on behalf of accused. Then it is the accused needs to suggest, as per Ex.P15 to P19 he entered into partnership hotel business with the complainant. Then it is him to suggest that, in respect of which building advanced the money as well as, had entered into partnership deed. But nothing has stated. Even, necessary suggestion as to who was paid money in respect of the said building, which initiate both of them to made invest the amount as found in Ex.P10(a) as well as Ex.P19. In that regard, no acceptable suggestion is made.
47. The PW.1 has specifically deposed that, to establish the payment of rentals to the landlady, he not produced any document, but deposed that, on behalf of accused through bank got paid. If the accused has suspect the payment of rentals to the landlady definitely, he needs to call the complainant to produce her bank statement or he could have made effort to summon the necessary bank manager to produce the bank particulars with regard to amount transferred by the complainant to her landlady Judgment 41 C.C.No.4357/2018 by way of cheque and on which respect the said money was paid to the landlady, it is the accused need to examine her. In that regard no such effort is been made. Though PW.1 is tendered for cross-examination, the accused has utterly failed to extract any contradiction in order to avoid his liability. It was the suggestion made to PW.1 during the cross-examination that, though as per Ex.P10(a) the amount payable by the accused was Rs.9,19,724/- and asked, why made it as Rs.9,20,000/- in the questioned cheque at Ex.P1. To the same, the PW.1 has deposed, the accused himself made the round figure by mentioning the amount of Rs.9,20,000/- as against the said sum. As per the doubt raised by the counsel for accused, there was difference of Rs.276/-. By adding the said amount and got issued the cheque by made round figure at Rs.9,20,000/- after lapse of long time is not an error on the part of complainant. The PW.1 categorically deposed, the accused himself made the round figure and got issued the cheque. Hence, the said cheque amount differences would not come in the way of complainant made the present claim. As discussed earlier, the complainant has successfully proved her case through PW.1 beyond the reasonable doubt and proved the guilt of the accused.
Judgment 42 C.C.No.4357/2018
48. The PW.1 has successfully withstood his contention in the witness box coupled with production of oral as well as documentary evidence. Though, accused has cross-examined the PW.1 and entered into witness box, nothing has been demonstrated by way of production of his probable defence. Though, the accused was part with the partnership business entered into with the complainant at appropriate stage as per Exs.P11 to P15 and he got issued the cheque at Ex.P1 coupled with the execution and issuance of Ex.P10 and attached documents, for the reasons better known to him, he not admitted its genuineness. By avoiding to disclose the truth with regard to the said document, it made clear that, the accused has failed to disclose his defence. The accused has utterly failed to disprove the case of complainant and even failed to discharge the initial burden casted upon him. Though there is no reverse burden casted on the complainant, she has proved her case through the PW.1 as well as documentary evidence.
49. The PW.1 in his cross-examination has deposed, himself introduced the accused to his mother i.e., complainant herein, as against the pleading of complainant that, accused was introduced through Amit Dadlich. The introduction of accused to the complainant through others is not a material, but the transaction Judgment 43 C.C.No.4357/2018 held between complainant and accused is the vital as discussed earlier. Therefore, such small difference would not come in the way of complainant in prove her case. The accused has utterly failed to discharge his initial burden to disbelieve the contention of the complainant as well as rebutted the statutory presumption. As discussed above by way of furnishing clear, convincing, corroborative, oral as well as documentary evidence has proved that, the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. Therefore, looking into the transaction, it is the considered opinion of this court that, the accused has taken bald, inconsistence defence without any base and failed to prove his improbable defence. Contrary, the PW.1 has established his case beyond the reasonable doubt through oral as well as documentary evidence. Thereby, unnecessarily cause the complainant to approach this court of law, therefore, the accused is liable to be punished by way of imposing fine sentence. Therefore, the accused is to be convicted by imposing the cheque amount of Rs.9,20,000/-. Out of the said fine amount, sum of Rs.9,10,000/- shall be payable to the complainant as compensation and remaining amount of Rs.10,000/- shall be payable to the state as fine amount. Accordingly, if the accused fails to pay the whole fine amount, the Judgment 44 C.C.No.4357/2018 accused shall undergo simple imprisonment for 12 months. Thereby, one more opportunity has provided to the accused to comply the order. Otherwise, the very purpose of filing complaint will be defeated. As discussed above, the complainant has proved her case beyond reasonable doubt. In the result, the accused shall sentence to pay the fine amount as detailed in the order portion. Accordingly, Point Nos.1 and 2 are answered in the Affirmative.
50. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
ORDER Accused found guilty for the offence punishable under Section 138 of Negotiable Instruments Act.
Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay fine of Rs.9,20,000/-.
Out of the said fine amount, sum of Rs.9,10,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount of Rs.10,000/- shall be payable to the state as fine amount.
Judgment 45 C.C.No.4357/2018 In default of pay the fine amount, the accused shall under go simple imprisonment for 12 (Twelve) Months.
The bail bond and cash security/surety bond of the accused stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 8 th day of January - 2021) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Amit Dadhich List of Exhibits marked on behalf of Complainant:
Ex.P1 : Power of Attorney Ex.P2 : Original Cheque Ex.P2(a) : Signature of accused Exs.P3 & P4 : Bank endorsements Ex.P5 : Office copy of legal notice Exs.P6 & P7 : Postal receipts Exs.P8 & P9 : Unserved R.P.A.D., covers Ex.P10 : Capital contribution investment letter Ex.P10(a) : Statement Ex.P10(b) to (d) : Signatures of accused and witness Ex.P11 : CC of office note letter Ex.P12 : CC of Form No.C Ex.P13 : CC of letter Judgment 46 C.C.No.4357/2018 Ex.P14 : CC of From No.1 Ex.P15 : CC of partnership deed Exs.P16 & P17 : CC of Aadhaar Cards Ex.P18 : CC of register extract Ex.P19 : Indian income tax returns acknowledgment
List of Witnesses examined on behalf of the defence:
DW.1 : Praveen.K List of Exhibits marked on behalf of defence:
Ex.D1 : CC of plaint in O.S.No.5677/2017
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 47 C.C.No.4357/2018
08.01.2021.
Comp - Sri.A.K. Adv.,
Accd - Sri.K.K.Adv.,
For Judgment
Case called out.
Complainant and accused are
absent. No representation from both side
advocates, despite, web-host the case
proceedings and intimate the date of
pronouncement of judgment. Hence, as
per Section 353(6) of Cr.P.C. the following judgment is pronounced in the open court vide separate order.
Judgment pronounced in the open court vide separate order.
***** ORDER Accused found guilty for the offence punishable under Section 138 of Negotiable Instruments Act.
Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay fine of Rs.9,20,000/-.
Out of the said fine amount, sum of Rs.9,10,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount of Judgment 48 C.C.No.4357/2018 Rs.10,000/- shall be payable to the state as fine amount.
In default of pay the fine amount, the accused shall under go simple imprisonment for 12 (Twelve) Months.
The bail bond and cash security/surety bond of the accused stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.