Bangalore District Court
Sri G. Vinod vs Sri. R. Sukesh on 15 March, 2016
IN THE COURT OF THE XIX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY
Dated this the 15th day of March, 2016
PRESENT: SMT. ISHRATH JAHAN ARA, B.A.L., L.L.B.,
XIX ADDL.C.M.M.BANGALORE.
Case No: CC No.3548/2012
Complainant: Sri G. Vinod
S/o. Sri J.S. Gajendra Reddy,
Aged about 31 years,
R/at Plot No.58,
A. Narayanapura,
Dooravani Nagar,
Bangalore -560 016.
Accused: Sri. R. Sukesh
S/o. Sri P Ramamohan Reddy,
Aged about 32 years,
R/at No.563, Sapthagiri Nilaya,
15th Cross, BEML Layout,
Thubara Halli,
Bangalore -560 066.
Offence complained of: U/s.138 of N.I. Act
Plea of accused: Pleaded not guilty
Opinion of the Judge Accused found guilty
Date of order: 15th March 2016
JUDGMENT
The complainant has filed this complaint U/s.200 of Cr.P.C. against the accused for the offence punishable U/s. 138 of N.I. Act.
2. The brief facts of the complaint that, the Complainant accused along with one Mr. Dayanand entered into a partnership agreement on 2 C.C.No.3548/2012 26.2.2007 and constituted a partnership firm under the name and style of Sri Sai Distributors, distribution of LPG Gas at No.95/3, Doddanekundi Post, Nest Malgudi Restaurant, Bangalore. In the said partnership firm, the Complainant had invested a sum of Rs.7,00,000/- as his share in the initial stage. The accused was the Managing Partner and this Complainant with one Sri. Dayanand are working partners. The Complainant and Sri. Dayanand have executed a Power of Attorney in favour of this accused and under the Power of Attorney the accused got the Power of signing and accepting the bills and other papers, documents to receive, pay cash or cheques on behalf of firm. The accused had paid 4 months remuneration and subsequently, he stopped the payment of remuneration to the Complainant , wherein the accused has to pay a sum of Rs.10,000/- per month. The Complainant along with Mr. Dayanand approached this accused and requested to conduct a meeting regarding the business of the firm and also directed to bring the books of accounts. In spite of several requests the accused failed to conduct the meeting. The accused started ignoring the request of the Complainant and he started to avoid this Complainant and even he has failed to keep up the books of accounts and also failed to conduct meeting. As such, the Complainant and Mr. Dayanand expressed their willingness to withdraw from the said partnership for which, the accused expressed his willingness that he will re-constitute the 3 C.C.No.3548/2012 partnership firm by settling the liabilities towards the Complainant and along with Mr. Dayanand. The accused towards amicable settlement and to discharge his liabilities, had issued 4 post-dated cheques in favour of this Complainant bearing cheque No.989908, dtd 30.7.2011 for Rs.50,000/-, cheque No.989909, dtd 30.8.2011 for Rs.50,000/-, cheque No.989910, dtd 30.9.2011 for Rs.50,000/- and cheque No.994121, dtd 30.10.2011 for Rs.50,000/-, all drawn at Oriental Bank of Commerce, Koramangala branch, Bangalore with a request to present the said cheques for encashment on its due date and it will be honoured on its presentation.
3. It is further submitted by the Complainant that by believing the words of the accused, he presented the said cheques before his banker State Bank of India, Kasturinagar Branch, Bangalore for encashment but all the four cheques returned dishonoured with an endorsement "funds insufficient" on 15.09.2011 and the same was informed to this Accused. As the Accused has failed to make payment of the cheques' amount, the Complainant got issued the Legal Notice through his advocate on 22.09.2011 through RPAD, calling upon the Accused to make payment of the cheques' amount within 15 days from the date of receipt of notice and the said notice was duly served upon this Accused on 30.09.2011. The accused even inspite of receipt of Legal Notice, neither chosen to make payment of the cheques' amount nor he 4 C.C.No.3548/2012 has complied the notice by paying the cheques' amount. The Accused knowing fully well that he has no sufficient funds in his bank account, had issued bogus cheques only with an intention to cheat this Complainant and thereby the accused committed an offence punishable u/Sec.138 of N.I. Act.
4. After recording of sworn statement of the complainant the Private Complaint lodged by the complainant was registered as a Criminal Case, summons was issued as against the accused. The accused appeared through his Counsel and he was enlarged on bail. Plea of accusation was read over to the accused. The accused pleaded not guilty and claimed to be tried.
5. The complainant himself got examined as PW1 and he got produced 6 documents marked as Ex.P1 to Ex.P6 and closed his side of evidence.
6. After closure of the complainant side evidence, accused Statement u/Sec.313 Cr.P.C. recorded and read over to the accused. The accused denied the incriminating evidence in toto and he has not led any evidence from his side. The accused got marked Ex.D1 document through confrontation during the cross-examination of PW1.
7. I have heard the arguments and perused the entire records. 5 C.C.No.3548/2012
8. The only point arise for my consideration is:
1. Whether the Complainant has proved the guilt of the accused u/s 138 of NI Act beyond all reasonable doubts?
2. What order?
9. My findings to the above point are as under:
Point No.1 : In the Affirmative
Point No.2 : As per final order
for the following:
REASONS:
10. Point No.1: The entire burden is on the complainant to prove his case and also to prove the above point. In order to prove the same, the complainant stepped into the witness box, got examined as PW-1 and he filed his affidavit in lieu of the oral evidence by reiterating the complaint averments.
11. PW1 deposed that he along with accused and one Mr. Dayanand entered into a partnership agreement on 26.2.2007 and constituted a partnership firm under the name and style of Sri Sai Distributors, distribution of LPG Gas at No.95/3, Doddanekundi Post, Nest Malgudi Restaurant, Bangalore and in the said partnership firm, he had invested a sum of Rs.7,00,000/- as his share in the initial stage. He deposed that the accused was the Managing Partner and he along with one Sri. Dayanand are working partners and they have executed a 6 C.C.No.3548/2012 Power of Attorney in favour of this accused and under the Power of Attorney the accused got the Power of signing and accepting the bills and other papers, documents to receive, pay cash or cheques on behalf of firm. He deposed that the accused had paid 4 months remuneration and subsequently, he stopped the payment of remuneration to him wherein the accused has to pay a sum of Rs.10,000/- per month. He deposed that he along with Mr. Dayanand approached this accused and requested to conduct a meeting regarding the business of the firm and also directed to bring the books of accounts and even in spite of several requests the accused failed to conduct the meeting. He deposed that the accused started ignoring his request and he started to avoid him and even he has failed to keep up the books of accounts and also failed to conduct meeting and as such, he along with Mr. Dayanand expressed their willingness to withdrawn from the said partnership for which, the accused expressed his willingness that he will re-constitute the partnership firm by settling the liabilities towards him along with Mr. Dayanand.
12. He deposed that the accused towards amicable settlement and to discharge his liabilities, had issued 4 post-dated cheques in his favour bearing cheque No.989908, dtd 30.7.2011 for Rs.50,000/-, cheque No.989909, dtd 30.8.2011 for Rs.50,000/-, cheque No.989910, dtd 30.9.2011 for Rs.50,000/- and cheque No.994121, dtd 30.10.2011 for 7 C.C.No.3548/2012 Rs.50,000/-, all drawn at Oriental Bank of Commerce, Koramangala branch, Bangalore with a request to present the said cheques for encashment on its due date and it will be honoured on its presentation.
13. He further deposed that he by believing the words of the accused, presented the said cheques before his banker for encashment but all the four cheques returned dishonoured with an endorsement "funds insufficient" on 15.09.2011 and the same was informed to this Accused. He deposed that as the Accused has failed to make payment of the cheques' amount, he got issued the Legal Notice through his advocate on 22.09.2011 through RPAD, calling upon the Accused to make payment of the cheques' amount within 15 days from the date of receipt of notice and the said notice was duly served upon this Accused on 30.09.2011. He deposed that the accused even inspite of receipt of Legal Notice, neither chosen to make payment of the cheques' amount nor he has complied the notice by paying the cheques' amount. He deposed that the Accused knowing fully well that he has no sufficient funds in his bank account, had issued bogus cheques only with an intention to cheat him and thereby the accused committed an offence
14. PW1 in order to prove his case, got produced two original cheques issued by this accused marked as Ex.P1 and Ex.P2. He deposed that the signature found on Ex.P1 and Ex.P2 is that of this accused and 8 C.C.No.3548/2012 he got identified the signature found on the cheque marked as Ex.P1 (a) and Ex.P2(a). He got produced two bank endorsements marked as Ex.P3 and Ex.P4. He got produced copy of the legal notice along with postal receipt marked as Ex.P5 and Ex.P5(a). He got produced the Postal Acknowledgement Due Card for having duly served the notice to this accused marked as Ex.P.6.
15. The accused has denied the entire case of the Complainant and also denied the very fact that he in order to settle the partnership account had issued his Ex.P1 and Ex.P2 cheques and the same were bounced.
16. The learned Counsel for the accused subjected PW1 for cross- examination and he extensively cross-examined the PW1.
17. The accused during the cross-examination of PW1 admitted the execution of the partnership deed and also admitted that he along with this Complainant and one Sri. Dayanand have jointly constituted a partnership firm under the name and style of Sri Sai Distributor. PW1 admitted the suggestion that the said Sri. Dayanand had also filed Arbitration Case against him along with this accused in A.A.No.9/2011. The accused has categorically admitted the fact that towards settlement of the partnership account after dissolution of the partnership, had issued his four cheques in favour of this Complainant each amounting 9 C.C.No.3548/2012 to Rs.50,000/-. A suggestion was put to PW1 that he was received four cheques from this accused towards settlement of accounts each for Rs.50,000/- and also executed a Settlement Deed as per Ex.D1 confronted to him. The said suggestion was categorically admitted by PW1 and also admitted the execution of Ex.D1 document along with his signature on Ex.D1 marked as Ex.D.1(a). PW1 stated that as per the terms of Ex.D1, he got received four cheques from this accused out of which, Ex.P1 and Ex.P2 cheques were issued by this accused. PW1 stated that out of the 4 cheques he filed three cases against this accused. PW1 stated that Ex.P1 and Ex.P2 cheques were issued by this accused under Ex.D1 document and both his cheques were dishonoured when the same were presented for encashment on the ground that there was no sufficient funds in the bank account of the accused.
18. The accused has taken up the specific defence that subsequently after dishonour of cheques he paid the cheques' amount by way of cheque to the Complainant and the same was duly acknowledged by this Complainant. During the cross-examination of PW1 accused suggested that during the year 2010 the accused had paid the entire settlement amount in his favour and also in favour of Mr. Dayanand and both of them have duly acknowledged the cash amount paid by this accused. However, PW1 has categorically denied the suggestion that he had already received the entire cheques' amount by 10 C.C.No.3548/2012 way of cash from this accused and even inspite of receipt of entire cheque amount he instead of returning Ex.P1 and Ex.P2 cheques to the accused, misused the same and filed this false complaint only with an intention to make an unlawful gain for himself and to cause monetary loss to the accused.
18. The accused except putting some suggestions to PW1 that he is not liable to pay the cheques' amount, has not chosen to deny a fact that he was liable to pay partnership settlement amount to this Complainant after dissolution of the partnership firm.
19. The accused by putting this suggestion to PW1 has categorically admitted the issuance of Ex.P1 and Ex.P2 cheques in favour of this Complainant towards repayment of his liability and also admitted that as on date of Ex.P1 and Ex.P2 cheques there existing a legally dischargeable liability on him. As I have discussed supra, the accused admitted the issuance of Ex.P1 and Ex.P2 cheques in favour of PW1 and also admitted his signature found on Ex.P1 and Ex.P2 marked as Ex.P.1(a) and Ex.P2(a). The accused even admitted the fact that his Ex.P1 and Ex.P2 cheques were bounced as there was no sufficient funds in his bank account.
11 C.C.No.3548/2012
20. The accused did not chosen to deny a fact that he himself has issued Ex.P1 and Ex.P2 cheques in favour of this PW1. No doubt he has taken up the defence that subsequently he has paid the cheques amount by way of cash and the same was acknowledged by the Complainant. On the contrary, the said defence was categorically denied by PW1 in his cross-examination.
21. Likewise, the accused has not chosen to deny both his Ex.P1 and Ex.P2 cheques were bounced as there was no sufficient funds in his ban account. The accused even did not chosen to deny that immediately after receipt of Ex.P3 and Ex.P4 Bank endorsements, the PW1 got issued Ex.P5 notice u/Sec.138 (b) of N.I. Act, calling upon him to pay the cheque amount and also by intimating the dishonour of the cheques and the said notice was duly served upon him. On the contrary, the PW1 has categorically deposed that he immediately after receipt of Ex.P3 and Ex.P4 bank endorsements got issued Ex.P5 notice u/Sec.138
(b) of N.I. Act, calling upon the accused to make payment of the cheques' amount and also by intimating the dishonour of the cheques and the said notice was duly served upon this accused.
22. He further deposed that the accused even after receipt of Ex.P5 has neither chosen to payment of the cheques' amount nor he has sent his reply by denying the transaction. Even these facts were not 12 C.C.No.3548/2012 denied by this accused. No suggestions were put to PW1 either by denying the issuance of Ex.P5 notice or by receipt of cheques as evident in Ex.P6. The Ex.P5 and Ex.P6 documents clearly prove that the PW1 well within the period of limitation, got issued the statutory notice u/Sec.138 (b) of N.I. Act and the said notice was duly served upon this accused. The oral and documentary evidence adduced before this court by PW1 clearly proves that the accused even after receipt of Legal Notice neither chosen to payment of the cheques' amount nor he has sent his reply by denying the transaction. In such situation, an adverse inference has to be drawn against this accused that the accused after admitting the contents of Ex.P5 did not resisted the claim of the Complainant by sending his reply nor he has complied the notice by paying the cheques amount. Admittedly, the entire burden is on this accused to rebut the case of the Complainant and also to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act.
23. The accused in order to prove his defence has not put forth any evidence from his side. Likewise, the accused has utterly failed to elicit any fruitful information from the mouth of PW1 to disbelieve his testimony or to discard his evidence. The accused except putting some suggestions to PW1 that he has already paid the cheques' amount by way of cash and the same was acknowledged by PW1, which has been categorically denied by PW1, nothing has been elicited from his mouth 13 C.C.No.3548/2012 to prove his defence. There is no evidence from the side of this accused to believe that subsequently, after issuance of Ex.P1 and Ex.P2 cheques he had paid the entire cheques' amount by way of cash and the same was acknowledged by the Complainant. The accused has not placed any evidence before this court to prove his defence and to prove that his duly signed cheques were misused by this Complainant and filed this false complaint, even though he is not liable to pay the cheques' amount. As I have discussed supra, the entire burden is on this accused to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act and to prove his defence that he had issued his Ex.P1 and Ex.P2 duly signed cheques in favour of this Complainant and subsequently he paid the entire cheques' amount by way of cheque. As I have discussed supra, the accused has totally failed to prove his defence to the satisfaction of the court. Likewise, the Accused has utterly failed to rebut the presumption available to this Complainant u/Sec.118 and also u/Sec.139 of N.I. Act it reads thus respectively.
24. As per the provisions of Sec.118, which reads thus:
a. Of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
b. As to date - that every negotiable instrument bearing a date was made or drawn on such date;14 C.C.No.3548/2012
c. As to time of acceptance - that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
d. As to time of transfer - that every transfer of a negotiable instrument was made before its maturity; e. As to order of endorsements - that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; f. As to stamps - that a lost promissory note, bill of exchange or cheque was duly stamped;
g. That holder is a holder in due course - that the holder of a negotiable instrument is a holder in due course;
25. Likewise, the accused also failed to rebut the presumption available to this Complainant u/s.139 of N.I. Act which reads:
It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.
26. The Learned Counsel for the Complainant has vehemently argued that the Complainant before filing of this complaint, has followed all the procedures prescribed u/Sec.138 of N.I. Act and this Accused even after receipt of Legal Notice neither chosen to make payment of the cheques' amount well within the period of limitation nor he has replied the notice by denying the transaction and therefore, an adverse inference has to be drawn against this Accused that he has issued the cheques towards partnership settlement of Rs.1,00,000/-, the Accused has to be convicted in accordance with law, is fully convinced this court. Admittedly, this Accused after receipt of the Ex.P.5 Legal 15 C.C.No.3548/2012 Notice, has neither chosen to make payment of the cheques' amount nor he has sent his reply by denying the transaction. In such situation, the arguments canvassed by the Learned Counsel for the Complainant, is fully convinced this court and as such it is accepted.
27. The complainant by adducing oral and documentary evidence before this court has proved the guilt of the accused beyond all reasonable doubt. There is no whatsoever doubt in the mind of court about the case of the complainant. The oral and documentary evidence adduced before this court by the complainant is fully corroborating with each other and convinced this court about this case. The complainant by adducing oral and documentary evidence before this court bring home the guilt of the accused beyond all reasonable doubt. Therefore, by taking into consideration the facts and circumstances and evidence available on record, I answer this Point No.1 in affirmative.
28. Point No.2. In view of my findings on the above point and the reasons stated therein, I proceed to pass the following:
ORDER Acting u/Sec.255 (2) of Cr.P.C. the accused is hereby convicted for the offence punishable u/Sec.138 of N.I. Act.
The accused is sentenced to pay a fine of Rs.1,50,000/-(Rupees One Lakh and fifty Thousand only). In any default to pay fine amount shall under go simple imprisonment for 6 months.16 C.C.No.3548/2012
Out of fine amount recovered under Section 357 of Cr.P.C. a sum of Rs.1,45,000/- (Rupees One Lakh and forty-five thousand only) shall be paid to the complainant which includes the cheque amount and also cost of the proceedings. Remaining fine amount of Rs.5,000/- shall be forfeited to State.
The bail bond and surety bonds of the accused stands cancelled.
Office to furnish free copy of the judgement to the accused forthwith.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified and then pronounced by me in the Open Court on this the 15th day of March, 2016) (ISHRATH JAHAN ARA) XIX ADDL.C.M.M., Bangalore ANNEXURE:
Witnesses examined on behalf of the Complainant:
PW.1 Mr. G. Vinod
Witnesses examined on behalf of the Accused:
Nil
Documents marked on behalf of the Complainant:
Ex.P.1& Ex.P2 Cheques
Ex.P.1(a) & Ex.P2(a) Signature of the accused
Ex.P.3 & Ex.P4 Bank endorsements
Ex.P.5 Copy of the legal notice
Ex.P5(a) Postal receipt
Ex.P.6 Postal Acknowledgement Due Card
Documents marked on behalf of the Accused:
Ex.D1 Settlement Deed
XIX ACMM, B'lore.
17 C.C.No.3548/2012