Bangalore District Court
Against The Accused For The Offence ... vs Has Committed An Offence on 16 January, 2019
IN THE COURT OF THE XV ADDL CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY.
Dated this the 16th day of January-2019
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.10857/2018
2.Name of the Complainant: V.DEEPAK,
S/o.Mr.A.C.Seth Vasudev
A/a.36 years,
Flat No.201, Jalaprasad Apts,
3rd Cross, Nagappa Street,
P.G.Halli,
Bangalore - 560003.
3.Name of the accused: Mr.Javeed
Proprietor
M/s.Motor Track
No.17/9, 2nd Cross,
J.C.Road,
Bangalore-560002.
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 16th day of January-2019.
2 CC.NO.10857/2018
***
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. According to the complainant the accused
approached him for financial assistance of Rs.2,50,000/- and
accordingly the complainant has lent the said loan amount to
the accused through cheque bearing No.302754, dated
13.01.2013, drawn on Syndicate Bank, Seshadripuram
branch, Bengaluru. The accused has executed on demand
promissory note and consideration receipt for having receipt
of said loan amount. That the accused in order to repay the
debt has issued a cheque bearing No.445113, for Rs.2 lakhs,
dated 12.12.2017, drawn on Dhanalakshmi Bank, J.C.Road
branch, Bengaluru. For collection purpose the complainant
has presented the said cheque on 30.01.2018 through his
Bankers by name Syndicate Bank, Seshadripuram branch.
The cheque was dishonored on 31.01.2018 and Bank has
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issued a Memo with an endorsement of "Funds Insufficient"
and other reasons. That on 27.12.2018 the complainant has
issued a legal notice through registered post. That despite of
service of the legal notice the accused neither paid the cheque
amount nor replied to the said notice. Hence the accused
has committed an offence punishable U/s.138 of the N.I.Act.
The complainant prayed to punish the accused.
3. After the institution of the complaint it has been
registered in PCR. No.5009/2018 and took cognizance of the
offence. The sworn statement of the complainant was
recorded and on the basis of the sworn statement and other
materials on the hand the criminal case has been registered
against the accused and issued summons to the accused. In
response to the summons the accused put his appearance
through his learned counsel and got enlarged on bail and to
whom the prosecution papers were supplied. The plea was
recorded. The accused denied the plea and claimed for trial.
,
4 CC.NO.10857/2018
4. During trial the complainant has been examined as
PW.1 and got marked Ex.P.1 to P.6. No evidence on behalf of
the accused.
5. I heard the argument of the parties, perused the
materials and the following points would arise for my
consideration.
1. Whether the complainant proves that
the accused towards the discharge of
legally enforceable debt of
Rs.2,00,000/- has issued the cheque
dated 12.12.2017 and on its
presentation for encashment purpose it
was 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?
6. My answers on the above points for consideration
are as under.
Point No.1 : In the Affirmative
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Point No.2 As per final order for the following:-
REASONS
7. Point No.1:- The complainant has been examined
as PW-1. He filed his evidence affidavit on oath as his
examination-in-chief and wherein he has been deposed in
accordance with the averments made in the complaint. PW-1
in support of his oral evidence has got marked the Ex.P.1 to
P.6. I have perused the said exhibits. The Ex.P.1 is the On
Demand Promissory Note and sale consideration receipt for a
sum of Rs.2,50,000/-, Ex.P.2 is a cheque dated 12.12.2017
for a sum of Rs.2 lakhs and Ex.P.2(a) is the signature of the
accused on the cheque, Ex.P.3 is the Bank endorsement
dated 31.01.2018, Ex.P.4 is the office copy of legal notice
dated 27.02.2018, Ex.P.5 is the postal receipt for having sent
the legal notice to the accused through registered post and
Ex.P.6 is the postal acknowledgement card for having due
service of statutory notice on the accused. On perusal of
these undisputed exhibits which disclose that the
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complainant has absolutely complied the ingredients involved
U/s.138 of the N.I.Act. Thus, the complaint is in accordance
with the provision of Section 138 of the Act.
8. The complainant has asserted that the accused
towards the discharge of the debt in part has issued a cheque
for a sum of Rs.2 lakhs and on its presentation it was
dishonored with an endorsement of "Funds Insufficient".
Further the complainant has contended that the cheque
returned unpaid accordingly the accused has committed
offence punishable U/s.138 of the N.I.Act. To substantiate
this plea the PW-1 in his examination-in-chief has been
deposed to that effect. I have gone through the cross-
examination of the PW-1. On perusal of the cross-
examination it reveals that the accused failed to rebut the
examination-in-chief of the PW-1 who has spoken that the
accused towards the discharge of legally enforceable debt has
issued cheque which has been marked at Ex.P.2. Further it
is pertinent to note that during the cross-examination of the
7 CC.NO.10857/2018
PW-1 the defence side has not disputed the Ex.P.1 on
demand promissory note and consideration receipt. This
undisputed piece of evidence substantiates the claim of the
complainant. During the cross-examination of PW-1 it has
been admitted about issue of signed blank cheque pertain to
accused in favour of the complainant. It was suggested that
the complainant had received the cheque in question from
the accused for having paid Rs.35,000/- to the accused. This
suggestion has been denied by the PW-1. It can be presumed
from the said piece of evidence that, the transaction has
effected between the complainant and the accused. Further it
can be ascertained from the cross-examination of PW-1 that,
both complainant and the accused are known to each other
in other words they are not strangers.
9. Thus on assessment of evidence as narrated herein
above the complainant has proved that the accused towards
the discharge of legally enforceable debt in part has issued
the cheque for a sum of Rs.2 lakhs and on its presentation it
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was dishonored with an endorsement of "Funds Insufficient".
Further the complainant has proved that the accused failed
to rebut the statutory presumption available U/s.118(a) and
139 of the N.I.Act. Hence, the accused is found guilty for the
offence punishable U/s.138 of the N.I.Act. Accordingly, I
proceed to answer point No.1 in Affirmative.
10. 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.2,00,000/- (Rupees Two Lakhs Only.) On deposit of fine amount the complainant is entitled for compensation of Rs.1,95,000/- (Rupees One Lakh Ninety Five Thousand only). The remaining balance amount of Rs.5,000/- shall be forfeited to the State.
9 CC.NO.10857/2018In default of payment of fine amount, the accused shall undergo Simple imprisonment for six months.
The personal bond executed by the accused is hereby stands cancelled and office to forfeit the cash surety to the State after 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 16th day of January- 2019.) (Subhash.B.Hosakalle) XV Addl. CMM., Bangalore.
ANNEXURE Witnesses examined for the Complainant:-
PW.1 V.Deepak Documents marked for the Complainant:-
Ex.P.1 D.P. Note and Sale consideration receipt.
Ex.P.2 Cheque.
Ex.P.2(a) Signature of the accused.
Ex.P.3 Bank endorsement.
Ex.P.4 Legal Notice.
Ex.P.5 Postal receipt.
Ex.P.6 Postal Acknowledgement.
10 CC.NO.10857/2018
Witnesses examined For Defence:- Nil Documents marked for Defence:- Nil (Subhash.B.Hosakalle) XV Addl.CMM., Bangalore.11 CC.NO.10857/2018
16.01.2019 (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.2,00,000/- (Rupees Two Lakhs Only.) On deposit of fine amount the complainant is entitled for compensation of Rs.1,95,000/- (Rupees One Lakh Ninety Five Thousand only). The remaining balance amount of Rs.5,000/- shall be forfeited to the State.
In default of payment of fine amount, the accused shall undergo Simple imprisonment for six months.
12 CC.NO.10857/2018The personal bond executed by the accused is hereby stands cancelled and office to forfeit the cash surety to the State after 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.
13 CC.NO.10857/2018