Bangalore District Court
Against The Accused For The Offence vs Complainant Paid Rs.9 on 5 June, 2018
1 CC.16874/2017 (J)
IN THE COURT OF THE XV ADDL CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY.
Dated this the 05th day of June-2018
Present: Subhash.B.Hosakalle.
B.Com.,LL.B (Spl)
XV Addl.C.M.M., Bangalore.
Judgment U/s.355 of the Cr.P.C. 1973.
1.Sl.No.of the case CC.No.16874/2017
2.Name of the Complainant: Priyanka Sadasivan,
Aged about 34 years,
D/o.Lt.Colonel Sadasivan K.A.,
R/at Flate No.B2, Gaurav
Enclave, KHB Main Road,
Behind Pushpanjali Theatre,
33/1-4, R.T.Nagar Post,
Bangalore - 560 032.
3.Name of the accused: Mr.Balaji Mohan,
S/o.Mohan Murugesh,
Aged about 28 years,
R/at No.7, 5th Cross,
Kanakadasa Layout,
Lingarajapuram,
Bangalore - 560 084.
4.The offence complained of U/s.138 of Negotiable
: Instruments Act.
5.Plea of the accused: Pleaded not guilty.
6.Final Order: Acting U/s.255(2) Cr.P.C.,
accused is Convicted.
7.Date of final Order 05th day of June-2018.
2 CC.16874/2017 (J)
***
This complaint is filed U/Sec.200 of Cr.P.C., by the
complainant against the accused for the offence
punishable U/Sec.138 of the Negotiable Instruments Act,
1881.
The facts in brief is as under.
2. That the complainant and accused are known to
each other since 2015. The Accused started a business
called as Drwheelz Auto Services Pvt.Ltd. The Accused
offered complainant a role of C.O.O. (Chief Operative
Officer) in the said company. The accused was in need of
money to run the said business. Accordingly he met with
the complainant in the month of August -2016 and sought
the help of money. Accordingly as per requirement of the
accused complainant paid Rs.9,62,000/- to the accused for
his business purpose. That amount was paid in two
installments. The first installment was Rs.4,79,000/-
which was arranged by obtaining personal loan and the
balance amount of Rs.4,83,000/- paid to the accused by
3 CC.16874/2017 (J)
way of NEFT. Thus, in total the complainant paid
Rs.9,62,000/- to the Accused.
3. As per complainant the accused in order to
repay the said debt in part has issued a cheque bearing
No.250892 dated 15.03.2017 for Rs.5,58,000/- On the
same date the complainant has presented the said cheque
for encashment purpose through his Bankers by name
Canara Bank, R.T. Nagar branch, Bengaluru and that
cheque was dishonored with an endorsement of "Funds
Insufficient" dated 24.03.2017. The said fact was informed
to the accused. As per complainant as per the request
made by the accused once again he presented cheque for
encashment purpose again it was dishonored with an
endorsement of "Funds Insufficient" dated 26.04.2017.
Thereafter on 09.05.2017 the legal notice was caused to
the accused and it was returned on 23.05.2017 with an
endorsement of 'not claimed'. Accordingly the complainant
is constrained to file this complaint.
4 CC.16874/2017 (J)
4. After the institution of the complaint it has been
registered in PCR No.7323/2017 and took cognizance of
the offence. The sworn statement of the complainant has
been recorded and on the basis of sworn statement and
other materials on hand the criminal case has been
registered against the accused and summoned to him. In
response to the summons the accused put his appearance
through his learned counsel and got enlarged on bail and
supplied prosecution papers to him. The plea has been
recorded. The accused denied the plea and claimed for
trial.
5 During trial the complainant has been examined
as PW.1 and got marked Ex.P.1 to Ex.P.8. Despite of giving
sufficient opportunity accused did not turn up and not
made any effort to produce his evidence on behalf.
6. Heard the learned counsel for the accused, I
have perused the materials and the following points would
arise for my consideration.
5 CC.16874/2017 (J)
1. Whether the complainant proves that
the accused towards the discharge of
legally enforceable debt has issued
the cheque for a sum of
Rs.5,58,000/- and on its
presentation for encashment purpose
it has been dishonored with an
endorsement of "Funds Insufficient"
and thereby the accused has
committed an offence punishable
U/Sec.138 of N.I. Act, 1881 ?
2. What order?
7. My answers on the above points for
consideration are as under.
Point No.1 : In the Affirmative
Point No.2 As per final order for the following:-
REASONS
8. Point No.1:-The complainant has pleaded that
the accused towards the discharge of legally enforceable
debt in part has issued the cheque dated 15.03.2017 for a
sum of Rs.5,58,000/- and on its presentation for twice for
encashment purpose it has been dishonored with an
endorsement of "Funds Insufficient" and thereafter
6 CC.16874/2017 (J)
statutory notice has been caused to the accused. Despite
of statutory notice the accused failed to pay the cheque
amount. In support of this plea the complainant herself
got examined as PW-1 and got marked Ex.P.1 to P.8. I
have perused the evidence of the complainant. The PW-1
in her examination-in-chief has been deposed in
accordance with the averments made in the complaint.
9. The complainant in support of her claim and
oral evidence got marked Ex.P.1 the cheque dated
15.03.2017 for Rs.5,58,000/- and Ex.P.1(a) is the
signature of the accused, Ex.P.2 is the Bank endorsement
dated 26.04.2017. Ex.P.3 is the postal receipt, Ex.P.4 is
the postal envelope through which statutory notice had
sent to the accused and it was returned with a postal
endorsement not claimed, Ex.P.5 is the office copy of legal
notice dated 09.05.2017, Ex.P.6 is the Bank account
extract of the complainant, Ex.P.7 is the First Information
Report and Ex.P.8 is the personal loan documents pertain
to the complainant.
7 CC.16874/2017 (J)
10. On perusal of undisputed documentary evidence
which unequivocally discloses that the complainant has
presented the cheque for encashment purpose well within
the statutory period as provided under the Act and it
further reveals that within 30 days from the date of
dishonor of the cheque the complainant has caused
statutory notice to the accused and as per materials
available on the record the statutory notice sent by the
complainant through registered post was not claimed by
the accused. Already it has been mentioned that the
documentary evidence has not been disputed by the
accused. The unrebutted documentary evidence clearly
shows that the complainant has complied the provisions of
Section 138 and 142 of the N.I.Act. As per the order sheet
dated 14.06.2017 which reveals that within 45 days as
provided under the Act, complainant has presented the
complaint. Thus, there was no any kind of irregularity on
part of the complainant. Thus, the complaint is well within
the frame work of the Act.
8 CC.16874/2017 (J)
11. The PW-1 in his examination-in-chief has been
deposed in accordance with the averments made in his
complaint. To substantiate the oral evidence the
complainant has got marked Ex.P.1 to P.8. The details of
the said exhibits has been narrated herein above. The
Ex.P.6 which is undisputed Bank account extract of the
complainant shows that at the given point of time the
complainant was capable to pay the amount as sought by
the accused. As per undisputed entry dated 26.04.2016
through RTGS process Rs.4,06,850/- had withdrawn by
the accused from the account of the complainant. Thus
the complainant has established that there was due
passing of debt in the account of the accused through
RTGS process. It is pertinent to note that the accused not
at all made any effort to disturb the Ex.P.6 which is the
most relevant and appropriate piece of evidence. Thus, it is
crystallized that the accused has failed to rebut
presumption available U/s.118(a) of N.I.Act in favour of the
complainant.
9 CC.16874/2017 (J)
12. It is further clear from the undisputed evidence
that the complainant has proved that the accused has
issued the cheque for a sum of Rs.4,58,000/- towards the
discharge of legally enforceable debt. No doubt the
statutory presumption as available U/s.139 of the Act is
rebuttable. But the accused failed to rebut the same.
Hence on the basis of evidence and reasons assigned
herein above accused found guilty for the offence
punishable U/s.138 of the N.I.Act. Accordingly I proceed
to answer the point No.1 in Affirmative.
13. Point No.2 : In view of the reasons assigned on
Point No.1, I proceed to pass the following:-
ORDER
As per the provisions of Sec.255(2) Cr.P.C. the accused is hereby Convicted for the offence punishable u/s.138 of NI Act, 1881. The accused shall liable to pay fine of Rs.5,58,000/- (Rupees Five Lakhs Fifty Eight Thousand Only.) On deposit of fine amount the complainant is entitled for compensation of Rs.5,53,000/- (Rupees Five Lakhs Fifty Three 10 CC.16874/2017 (J) Thousand only). The remaining amount of Rs.5,000/- is to be forfeited to the State.
In default of payment of the fine amount the accused shall undergo simple imprisonment for one year.
The Bail bond and the personal bond executed by the accused stands cancelled. Office to forfeit the cash surety after the expiry of appeal period.
Copy of the judgment shall be furnished to the accused at free of cost.
(Dictated to the Stenographer, transcript thereof is computerized and printout taken by him, is verified and then pronounced by me in Open Court on this the 05th day of June- 2018.) (Subhash.B.Hosakalle) XV Addl. CMM., Bangalore.
ANNEXURE Witnesses examined for the Complainant:-
PW.1 Priyanka Sadasivan Documents marked for the Complainant:-
Ex.P.1 Original cheque.
Ex.P.1(a) Signature of the accused.
Ex.P.3 Postal receipt.
Ex.P.4 Postal envelope.
Ex.P.5 Legal Notice..
Ex.P.6 Canara Bank Account Extract..
11 CC.16874/2017 (J)
Ex.P.7 Certified copy of F.I.R.
Ex.P.8 Loan Agreement.
Witnesses examined For Defence:- Nil Documents marked for Defence:- Nil (Subhash.B.Hosakalle) XV Addl.CMM., Bangalore.
12 CC.16874/2017 (J) 05.06.2018 (Judgment Pronounced in the Open Court Vide Separate Order sheet ORDER As per the provisions of Sec.255(2) Cr.P.C. the accused is hereby Convicted for the offence punishable u/s.138 of NI Act, 1881. The accused shall liable to pay fine of Rs.5,58,000/- (Rupees Five Lakhs Fifty Eight Thousand Only.) On deposit of fine amount the complainant is entitled for compensation of Rs.5,53,000/- (Rupees Five Lakhs Fifty Three Thousand only). The remaining amount of Rs.5,000/- is to be forfeited to the State.
In default of payment of the fine amount the accused shall undergo simple imprisonment for one year. 13 CC.16874/2017 (J) The Bail bond and the personal bond executed by the accused stands cancelled. Office to forfeit the cash surety after the expiry of appeal period.
Copy of the judgment shall be furnished to the accused at free of cost.
(Subhash.B.Hosakalle) XV Addl.CMM., Bangalore.