Bangalore District Court
M/S. Sree Gokulam Chits & vs Sri. Keshava Murthy on 2 January, 2020
IN THE COURT OF THE XV ADDL. JUDGE COURT
OF SMALL CAUSES & 23rd ACMM, MAYO HALL
UNIT, BENGALURU
Present: Sri. DYAVAPPA. S.B.,
B.A., LL.B.,
XV Addl. Small Causes Judge &
XXIII A.C.M.M., Member, M.A.C.T.,
Bengaluru.
Dated this the 2nd day of January 2020
CC.No.52612 / 2017
COMPLAINANT: M/s. Sree Gokulam Chits &
Finance Co. (P) Ltd.,
Having its Registered office at:
No.66, Arcot Road, Kodambakkam,
Chennai and having its Branch
office at: No.273, Main road,
Whitefield, Bangalore66.
Represented by its Branch GPA
Holder and legal clerk Sidhraju.
(By Pleader Sri.B.N.Ravishankar)
V/s
ACCUSED: Sri. Keshava Murthy,
Narayanakere,
Kalkunte Post,
Hoskote, Bangalore 560067.
(By Pleader Sri.C.V. Annaiah)
*****
2 CC No.52612/2017
SCCH19
Date of offence : 15112013
Date of report of offence : 23012014
Date of arrest of the accused :
Date of recording of evidence : 04122019
Date of completion of evidence : 04122019
Offence complained of : 138 of N.I Act
Judgment : Conviction
JUDGMENT
The Complainant has filed this complaint against accused U/sec. 200 of Cr.P.C for the offence punishable under Section 138 of N.I. Act.
2. The brief contents of the complaint stated as under:
The Complainant company is a company Registered under companies Act and one Mr. Sonne Gowda .P. is the Member and subscribed for a chit bearing No.G2F/312 TICKET No.11 in their company. It is further stated that, the accused is the Surety/Guaranter to the said Sonnegowda.P. and said Sonnegowda.P. become successful bidder of the chit and received the prize amount from the Complainant company and thereafter said Sonnegowda .P. become chronic defaulter to pay the monthly installments to the 3 CC No.52612/2017 SCCH19 Complainant company. It is further stated that, inspite of repeated demands and requests by the Complainant the said Sonne Gowda.P and the accused have failed to pay the monthly installments. At last in the month of November 2013 towards discharge of his legal liability the accused has issued one cheque in favour of the Complainant for a sum of Rs.1,00,132/ dated 15112013 bearing No.141792 drawn on Karnataka Bank Ltd., Varthur branch, Bangalore. On 16112013 the complainant company has presented the said cheque for encashment through their banker Federal bank, Marathalli branch, Bangalore and same was returned on 18112013 for the reasons "funds insufficient". Hence, the Complainant got issued demand notice to the accused on 14122013 by RPAD, but said notice was not served on the accused and the accused has not made any payment. It is further stated that, the accused knowing fully well that the amount standing to the credit of accused account is not sufficient to honour the above said cheque. Hence the accused has committed an offence, therefore the Complainant has prays for punish the accused U/sec.138 of N.I. Act and also grant compensation to the complainant.
3. After presenting the complaint, this court has taking the cognizance of offence and registering as PCR 4 CC No.52612/2017 SCCH19 No.50918/2014 and after recording the sworn statement and perusal of the materials, this Court has registered this case for the offense punishable under Section 138 of N.I. Act and issued the summons to the accused. After service of the summons, the accused appeared through his counsel and obtained the bail. Copy of the complaint supplied to the accused and as the case is summons case, the acquisition of the plea as read over and explained to the accused. The accused pleads not guilty and claims to be tried, hence posted for complainant evidence.
4. In order to prove the case, the Complainant examined as PW.1 and produced in all 12 documents marked as Ex.P.1 to P.12. After completion of the complainant evidence the statement under Section 313 of Cr.P.C. is recorded and the accused are denied the incriminating evidence against them. Accused has not entered the witness box for lead the defence evidence. Heard the argument of both counsels respectively.
5. I have perused the materials available on hand that for the following points arise for my consideration:
1) Whether the complainant proves that towards payment of the chit amount, the accused has issued cheque bearing No.141792 for a sum of Rs.1,00,132/ 5 CC No.52612/2017 SCCH19 dated 15112013 drawn on Karnataka Bank ltd., Varthur Branch, Bangalore and on presentation of the said cheque, same was dishonored and returned with an endorsement of "Funds insufficient"
and inspite of issuance of legal notice, the accused has not paid the cheque amount, and with an intention to cheat and default the complainant issued the cheque, thereby the accused has committed an offence punishable under Section 138 of Negotiable Instrument Act?
2) Whether the complainant is entitled to claim the compensation amount from the accused?
3) What Order?
6. For the following reasons, I given the answer to the above points are as under:
Point No.1 : In the Affirmative
Point No.2 : In the Affirmative
Point No.3 : As per the final order,
for the following:
REASONS
7. Point No.1 and 2: It is the specific case of the
complainant that, One Sonne Gowda .P. is the
member and Subscriber of the complainant company and become successful bidder and received the prize amount from the Complainant thereafter become chronic 6 CC No.52612/2017 SCCH19 defaulter in pay the monthly installments to the company and the accused being Surety/Guaranter to said Sonne Gowda .P. for the purpose of repayment of the chit fund amount, the accused has issued the cheque for the amount of Rs.1,00,132/ on dated: 15112013 drawn on Karnataka Bank, Varthur Branch, Bangalore in favour of the complainant and after presentation the said cheque returned with the reason of "Insufficient fund". Inspite of issuance of notice, accused has failed to pay the amount within stipulated period. Hence they pray for punish the accused and directed to pay the cheque amount.
8. The representative of the Complainant finance Company one Sri. Sudhakar .L examined as PW.1 and filed the affidavit in lieu of chief examination. In his chief affidavit he has repeated the entire averments of the complaint and further he has identified one cheque and bank endorsement, office copy of legal notice with two postal receipts and two returned postal covers are marked as Ex.P1 to P.8 and produced one Resolution and Authorization Letter marked as Ex.P.10 and P.11 and also produced one account statement marked as Ex.P.12.
7 CC No.52612/2017SCCH19
9. On perusal of the evidence and documents produced by the Complainant one thing is clear that, the accused has not denied the Cheque and signature, which is marked as Ex.P2. Further, after perusal of the documents it is clear that, the accused is the guarantor to the main subscriber Mr.Sonne Gowda.P. and has executed all the papers in favour of the Complainant. It is pertinent note that, when the accused has not denied the cheque and also his signatures, then the initial burden is upon the Complainant to prove the cheque of accused is discharged and automatically the onus shifts upon the accused to prove his defence and it is for the accused to rebut the legal presumption enumerated under Section 139 of N.I. Act. As per Section 139 of N.I. Act there is a presumption that the said cheque was issued for discharging the legal liability and it is for the accused to rebut the said presumption by adducing cogent, convincing and acceptable evidence. It is held in a decision reported in ILR 2006 Karnataka 4642.
" NEGOTIABLE INSTRUMENTS ACT, 1881 - SECTION 138 - OFFENCES UNDERSECTIONS 139 - Presumption under ConvictionAppealed against Conviction Confirmed Revision Against Mere denial of issuing chequeswhether is sufficient to discharge the initial burden 8 CC No.52612/2017 SCCH19 HELD, Mere denial of issuing cheques would not be sufficient as it is time and again noted that once the cheque is issued duly signed by the petitioner, the presumption goes against him as per section 139 of the Negotiable Instruments Act."
10. The accused has not produced any document and nothing has been elicited in the Cross examination. Further the accused and complainant have filed a Joint memo, wherein the accused has admitted the transaction and agreed to pay the cheque amount to the complainant, hence it is clear that, the accused has issued the cheque in favour of the complainant for discharge the legal liability. It is pertinent to note here that, the accused has failed to cross examine the complainant and nothing has been elicited about denial of issuance of cheque in favour of the complainant and also not chosen to adduce the defense evidence in their favour. The complainant was complained Section 142 NI Act. Therefore all these material available on record goes to show that the accused has utterly failed to discharge his onus and also he has failed to rebut the legal presumption.
11. Though the evidence of the accused not necessary for rebuttal the presumption, but for the 9 CC No.52612/2017 SCCH19 purpose of disprove the case of the complainant, the Counsel for the accused has not come forward to Cross examine the Complainant. As it is time and again noted that once the cheque is issued and issued the notice by the complainant, the presumption goes against the accused as per Section 139 of Negotiable Instrument Act and the accused is liable to punish for the offence punishable under Section 138 of N.I. Act. Therefore in this case the accused has failed to discharge their onus and failed to rebut the legal presumption. Therefore it is to be held that the accused has committed an offence punishable under Section 138 of N.I. Act.
12. Further this court is also empower to award some compensation to the Complainant, if the facts and circumstances so exists. In this case the said Cheque was issued by the accused to the Complainant in the year 2013 and after chief examination of the complainant, when the case is posted for Cross examination, at that stage both parties have filed the Joint memo, wherein the accused has agreed to pay the amount of Rs.1,00,132/ to the Complainant and same was agreed by the complainant. Therefore considering the transaction and settlement between 10 CC No.52612/2017 SCCH19 the accused and Complainant, I am of the view that if the complainant is awarded a sum of Rs.1,00,132/ then that would definitely meets the ends of justice. Hence the Complainant is entitled to claim the compensation under sec.357 of Cr.P.C. With these observations I answered to the Point No.1 & 2 in the Affirmative.
13. POINT No. 3 : For the foregoing reasons, I proceed to pass the following ORDER Accused found guilty for the offence punishable under Section 138 of N.I. Act.
Acting under Section 255(2) of Cr.P.C. I hereby convicted the accused for the offence punishable under Section 138 of N.I. Act and sentenced by imposing the fine of Rs.1,000/ and in default of payment of fine, he shall further undergo simple imprisonment for 30 days.
Acting under Section 357 of Cr.P.C. I hereby direct the accused to pay compensation amount of Rs.1.00,132/ to the Complainant as per the terms and conditions of Joint memo. Failing which, the Complainant is at liberty to recover the said amount as per Section 421 of Cr.P.C.
11 CC No.52612/2017SCCH19 Office is hereby directed to supply the copy of this Judgment to the Accused, immediately on free of cost.
(Dictated to the Stenographer directly on Computer, then corrected by me and pronounced in the open court on this the 2nd day of January 2020).
(DYAVAPPA. S.B.) XV ASCJ & XXIII ACMM BANGALURU.
Annexure:
List of witness examined for Complainant:
PW.1 : Sudhakara .L List of documents marked for complainant:
Ex.P.1 : Notarized copy of General Power of Attorney, Ex.P.2 : Cheque Ex.P.3 : Bank Endorsement Ex.P.4 : Copy of Legal notice Ex.P.5 : Postal Receipt Ex.P.6 : returned RPAD Cover Ex.P.6(a) : Copy of Legal notice in Ex.P6 Ex.P.7 : Monthly Ledger Extract Ex.P.8 : Certificate of Incorporation, Ex.P.9 : Copy of Extract from the Minutes of the Proceedings of the Board of Directors, Ex.P.10 : Surety and Proposal form/ Form No.1 12 CC No.52612/2017 SCCH19 Ex.P.11 : Payment voucher, Ex.P.12 : Ledger extract.
List of witness examined for defence:
Nil List of documents marked for defence:
Nil (DYAVAPPA. S.B.) XV ASCJ & XXIII ACMM BENGALURU.