Bangalore District Court
Is A Company vs In His Vernacular on 6 December, 2016
IN THE COURT OF THE XLII ADDL.CHIEF METROPOLITON MAGISTRATE,
NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 6th day of December, 2016
PRESENT: A. V. Patil., B.Com, LLB (Spl)
XLII A.C.M.M.,
Bengaluru City.
CC.No.2098 of 2016
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
1. Sl.No. of the case : CC.No.2098/2016
2. The date of commence of evidence: 17.10.2016
3. The date of Institution : 22.09.2015
4. Name of the Complainant : M/s Margadarsi Chits (K)
Pvt Ltd, No.21 & 22,
1st floor, Krishna Towers,
3rd main road,
Gandhinagar,
Bangalore-560009
Branch: Gandhinagar,
Rep by its Foreman/Manager
Shri K.N Ramesha
5. Name of the Accused : 1. A. Prakash
S/o B Adaram,
Prop: Raksha Electricals
& Hard Ware, No.10/77-3C,
Old Bangalore Road, Hosur,
Krishnagiri District,
Tamil Nadu- 635109.
2 C.C.No.2098 /2016
2. Mr. A Prakash,
S/o B. Adaram,
R/at Flat No.43/13,
Ground Floor, TNHB Colony,
Bagalur Road,
Hosur, Krishnagiri District,
Tamilnadu-635109.
6. The offence complained
of or proved : U/s.138 of N.I. Act
7. Plea of the accused on
his examination : Pleaded not guilty
8. Final Order : Accused is convicted
9. Date of such order : 06.12.2016.
JUDGMENT
1. This case has been registered against the accused on the basis of the complaint filed by the complainant u/s 200 of Cr.P.C. for the offence punishable u/s 138 and 142 of Negotiable Instrument Act.
2. The particulars of the complainant's case are that:
Complainant is a Company, registered under Company's Act 1956 and engaged in business of promoting and conducting chits as per provisions of the Chit Funds Act 1982. One Smt. Sukanya Parihar w/o accused subscribed of the chit bearing No.LT006D KB-50 in complainant Company for chit value of Rs.25,00,000/- payable at Rs.50,000/- for 50 months at Gandhinagar Branch. The said 3 C.C.No.2098 /2016 Sukanya participated in the chit auction and declared as the prize bidder and received the prize money of Rs.15,00,000/- after deducting the bid amount on 08.02.2014. Accused along with others guarantors executed necessary documents. After receiving the prize amount accused fails to pay the chit installments regularly and become a defaulter. Hence, legal notice came to be issued to the Smt. Sukanya Parihar wife of the accused and filed a dispute before the Deputy Registrar of Chits, Central Zone, R.C Road, Bangalore. After hearing the accused came to the complainant Company and requested time for settlement and issued a cheque bearing No.000458 dated 11.07.2015 for an amount of Rs.17,71,355/- drawn on Karur Vysya Bank Limited, Hosur branch, Bangalore in favour of the complainant. The complainant presented said cheque for encashment through his banker on 12.07.2015. To the shock of the complainant the said cheque was dishnoured for the reasons 'funds insufficient' with memo dated 16.07.2015. There after on 13.08.2015 the accused got issued legal notice through RPAD and the same was served upon the accused. Even after receipt of the notice, accused not made any payment. According to the complainant, the accused has committed an offence punishable u/s 138 of N.I. Act. Accordingly the complainant filed the complaint on 22.09.2015.4 C.C.No.2098 /2016
3. In pursuance of the summons, the accused has appeared through Counsel and got enlarged on bail by executing necessary documents. The copy of the complaint was furnished to the accused, as required under law. As there is sufficient material, plea was recorded against the accused on 08.09.2015 and explained to the accused in his vernacular, for which the accused pleaded not guilty and claims to be tried.
4. In order to prove the case, the Manager of the complainant Company examined as PW1 and got marked Ex.P1 to 9. Then the statement u/s 313 Cr.P.C came to be recorded on 09.11.2016, wherein the incriminating evidence appeared against the accused was read over and explained. Accused denied the incriminating evidence read over to him. Accused neither adduced any oral evidence nor got marked any documents on his behalf.
5. Perused the records and written arguments filed by both the side.
6. On the basis of the above facts, the following points arise for my consideration:
1) Whether the complainant proves that the accused towards discharge legal recoverable debt issued cheque bearing No.000458 for Rs.17,71,355/-
dated 11.07.2015 drawn on Karur Vysya Bank Limited, Hosur Road Branch, Bangalore in favour of 5 C.C.No.2098 /2016 complainant, on presentation for encashment it was returned as 'A/c closed' and in spite of receipt of legal notice, the accused failed to pay the cheque amount within the statutory period and thereby the accused has committed an offence punishable u/s 138 of N.I. Act?
2) What order?
7. My findings on the above points are as under :
Point No.1: In the Negative Point No.2: As per final order, for the following:
REASONS
8. Point No.1:- In order to prove the case, the Manager of the complainant Company filed affidavit by way of examination-in-chief and has reiterated the allegations made in the complaint. He also got marked documents Ex.P1 to 9. Ex.P1 is the certified copy of the resolution, Ex.P2 is the cheque, Ex.P2(a) is the signature of the accused, Ex.P3 is the bank memo, Ex.P4 is the office copy of the legal notice, Ex.P5(a)&(b) are two Postal receipts, Ex.P4(c) is the returned postal cover, Ex.P4(cc) are the copy of the legal notice found in the returned postal cover, Ex.P5 is the demand pronote, Ex.P6 is the surety form, Ex.P7 is the agreement of guarantee, Ex.P8 is the statement of account, Ex.P9 is the complaint. Accused did not chosen to cross-examine the PW1, hence, cross-examination of PW1 taken as nil. The oral evidence of PW1 remains unchallenged. 6 C.C.No.2098 /2016
9. Accused neither examined him self nor any witnesses on his behalf. Even no documents got marked on his behalf.
10. It is the definite case of the complainant the accused being the guarantor to Smt. Sukanya Parihar, subscriber of the chit issued the chque in question for payment of chit dues and when the said cheque was presented for encashment came to be returned un paid with endorsement 'Funds insufficient'. Even after receipt of legal notice accused failed to pay the disputed cheque amount.
11. In this case, the court has to peruse whether mandatory requirements of Sec.138 and 142 of N.I. Act are complied with or not to take cognizance of complaint for the commission of crime punishable u/s 138 of N.I. Act. It should be ascertained from the date of issuance of cheque, presentation of cheque, communication of Bank endorsements, issuance of legal notice for payment of cheques amount, service of notice and date of institution of complaint. Ex.P2/cheque is dated 11.07.2015, presented to the bank for encashment and received the intimation of dishonour of cheque for the reasons 'Funds Insufficient' dtd.16.07.2015 as per Ex.P3, on 13.08.2015 complainant got issued Ex.P4/legal notice to the accused. It is evident that the cheque presented for encashment within the validity time, notice demanding the cheque amount and filing of complaint before the court after service of notice are within 7 C.C.No.2098 /2016 the period of specified by law.
12. On appreciation of entire evidence, this court is of the opinion that the accused has miserably failed to prove the fact that he has not issued cheque for discharge of legally enforceable debt. On the contrary, the complainant has proved that the accused has issued Ex.P2/cheque for a sum of Rs.17,71,355/- towards discharge of legally enforceable debt and on presentation of the cheque, it was dishonored for the reasons 'Funds Insufficient'. Even after service of legal notice, the accused has not paid the cheques amount. Hence, in the considered view of this court, the complainant has proved that the accused has committed an offence punishable u/s 138 of N.I. Act. Hence, I answer the above point No.1 in the affirmative.
13. Point No.2:-
No.2 From the material on record, it appears that the accused is a businessman and is aged about 32 years. Considering the age and occupation of the cheque, if the accused is sent to jail, it would cause problem to the accused as well as to his family members. Having regard to the facts and circumstances, prevailing rate of interest in the nationalized Bank and litigation expenses, I proceed to pass the following:
ORDER The accused is found guilty of the offence punishable u/s 138 of N.I. Act.8 C.C.No.2098 /2016
Acting u/s 264 of Cr.P.C. the accused is hereby convicted and sentenced to pay fine of Rs.18,75,000/-, in default shall undergo simple imprisonment for three months.
Out of fine amount of Rs. 18,75,000/-a sum of Rs. 18,73,000/-is ordered to be paid to the complainant towards compensation u/s 357 of Cr.P.C and the balance amount of Rs.2,000/- shall be remitted to the State.
The bail bond executed by the accused stands cancelled. Supply free copy of the judgment to the accused. (Dictated to Stenographer, transcribed and computerized by her, taken print out corrected, signed by me and then pronounced in the open court this the 6th day of December, 2016) (A. A. V. Patil) Patil XLII Addl. Chief Metropolitan Magistrate, Bangaluru.
ANNEXURE COMPLAINANT:-
LIST OF WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT: -
PW1 : K.N. Ramesha LIST OF DOCUMENTS MARKED ON BEHALF OF THE COMPLAINANT:-
COMPLAINANT:-
Ex.P1 : C/C of resolution copy
Ex.P2 : Cheque
Ex.P2(a) : Signature of the accused
Ex.P3 : Bank Memo
Ex.P4 : Office copy of the legal notice
Ex.P4(a)&(b) : 2 Postal receipts
9 C.C.No.2098 /2016
Ex.P4(c) : Returned postal receipts
Ex.P4(cc) : legal notice found in returned Postal cover Ex.P5 : Pronote Ex.P6 : Surity Form Ex.P7 : Agreement of guarantee Ex.P8 : Statement of account Ex.P9 : Complaint.
LIST OF WITNESSES EXAMINED ON BEHALF OF THE DEFENCE:
DEFENCE:- -Nil-
LIST OF DOCUMENTS MARKED ON BEHALF OF THE DEFENCE:-
DEFENCE -Nil-
(A.
A. V. Patil)
Patil
XLII Addl. Chief Metropolitan
Magistrate, Bengaluru.
10 C.C.No.2098 /2016
Judgment pronounced in the open
court vide separate order.
ORDER
The accused is found guilty of the offence punishable u/s 138 of N.I. Act.
Acting u/s 264 of Cr.P.C. the accused is hereby convicted and sentenced to pay fine of Rs.18,75,000/-, in default shall undergo simple imprisonment for three months.
Out of fine amount of Rs. 18,75,000/-a sum of Rs. 18,73,000/-is ordered to be paid to the complainant towards compensation u/s 357 of Cr.P.C and the balance amount of Rs.2,000/- shall be remitted to the State.
The bail bond executed by the accused stands cancelled.
Supply free copy of the judgment to the accused.
Issue NBW to accused returnable by
30.01.2016.
XLII A.C.M.M, Bangaluru.
11 C.C.No.2098 /2016