Bangalore District Court
Mr. R. Vengala Reddy vs Mr. M. Aiaz on 2 July, 2018
IN THE COURT OF LVIII ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL UNIT, BENGALURU. (ACMM-58)
PRESENT: Sri KAMALAKSHA.D, B.A., LLB.
LVIII ADDL. CHIEF METROPOLITAN
MAGISTRATE,
Dated : This the 2nd day of July, 2018.
C.C.No.53899/2014
COMPLAINANT : Mr. R. Vengala Reddy.
S/o. Sunki Reddy,
Aged about 34 years,
R/at No.3, 2nd Cross, Sri Krishna
Nagar, Kalkere, Horamavu Post,
Bengaluru - 560 043.
(By Sri V. Harihara- Advocate)
V/s
ACCUSED : Mr. M. Aiaz,
Proprietor,
M/s. M. Aiaz Fabrication,
Aged about 35 years,
No.1218, Kuri Narayanappa
Layout, Chowdeshwari Temple
Road, BDA Layout, 'E' Block,
Lingarajapuram, St. Thomas
Town Post, Bengaluru - 560 084.
(By Sri Manjunath Naik,
Advocate)
1 Date of Commencement 5.5.2014
of offence
2 Date of report of offence 26.06.2014
3 Presence of accused
3a. Before the Court 08.11.2016
3b. Released on bail 08.11.2016
4 Name of the Complainant R. Vengala Reddy.
5 Date of recording of 24.01.2017
evidence
6 Date of closure of 03.05.2017
evidence
7 Offences alleged U/s 138 of the Negotiable
Instruments Act.
8 Opinion of Judge Accused is found guilty.
2 CC.No53899/2014
JUDGEMENT
The private complaint is filed Under Section 200 of Cr.P.C against the accused alleging that he has committed the offence punishable under Section 138 of Negotiable Instruments Act.
2. The brief facts of the complainant are as follows :
The complainant submits that the accused had borrowed a handloan of Rs.90,000/- on 5.5.2013 to meet his personal and business commitments by promising to return the same within one year.
3. It is further submitted by the Complainant that the accused in order to return the principal amount, had issued a Cheque bearing No.734442 dtd.5.5.2014 for Rs.90,000/- drawn on State Bank of India, Kacharakanahalli, Kammanahalli Main Road, St. Thomas Town branch, Bengaluru in favour of the Complainant and promised to pay interest @ 2% per month on the principal hand loan amount. But the accused has failed to pay the interest as promised by him.
4. It is further submitted in the compliant that the said Cheque was presented by the Complainant through his banker State Bank of India, Dodda Banaswadi, Bengaluru - 560 0 on 5.5.2014. But the said bank issued an endorsement for 3 CC.No53899/2014 "Signature differs and Non-CTS Cheque" on 7.5.2014. After that the Complainant got issued Demand Notice through RPAD as well as under Speed Post on 19.5.2014 calling upon the accused to pay the Cheque amount. The said notice sent through Speed Post was served and the notice sent by RPAD was returned with a postal shara "Party Refused" on 22.5.2014. But, the accused has not paid the cheque amount. Therefore the contention of the Complainant that the accused deliberately issued the Cheque in favour of the Complainant. Therefore, the Complainant prays to convict and grant compensation.
5. The cognizance for offence was taken of my learned predecessor. The criminal case came to be registered against the accused. The summons was issued to the accused. The accused in obedience of the summons appeared before the Court and enlarged on bail.
6. The substance of the accusation was framed, read over and explained to the accused in the language known to him by the learned predecessor of this Court. The accused pleaded not guilty and claimed to try the case. Hence, the case was posted for complainants evidence.
4 CC.No53899/2014
7. The Complainant examined himself as PW-1 and 5 documents were marked as Ex.P.1 to Ex.P.5. On the other hand, the accused got examined himself as DW1 and no documents were marked from his end.
8. The statement as required under Section 313 of Cr.P.C. was recorded. The accused denied all the incriminating evidence appeared against her.
9. Arguments of the Complainant's side is heard. But the learned Counsel for the accused has not appeared. Therefore, the arguments of the accused side is treated as not addressed.
10. Now the following points that arise for the consideration of this Court are :
1. "Whether the Complainant proves the cheque issued by the accused person dishonoured with an endorsement as "Signature differs and Non-CTS Cheque"
and inspite of service of legal notice and demand the accused person failed to pay the cheque amount within stipulated period as such she has committed an offence punishable under section 138 of Negotiable Instruments Act?"
2. What order ?
11. My answer to the above points are as follows :
POINT No.1 : In the Affirmative 5 CC.No53899/2014 POINT No.2 : As per final order for the following;
REASONS
12. POINT No.1 - PW1 in the affidavit by way of chief- examination has repeated the versions of complaint. I would not like to reproduce the same to avoid repetition of facts since the complainant has explained the details of complaint in chief- examination. In the cross-examination it is directly suggested to the PW1 that the accused had borrowed amount of Rs.10,000/- and he repaid it with interest. But the said suggestion question is denied. The PW1 further says that he paid the loan amount in the shop of accused. But, no one was present except accused. The Complainant paid full amount by way of cash. It is further suggested by the PW1 that the accused does not know English Language. The further cross of the PW1 was closed inspite of adjournments sought by the accused Counsel. Thereafter the accused did not make attempt to reopen the stage.
13. Coming to the documentary evidence, the Ex.P.1 is the Cheque in question for amount of Rs.90,000/-. Ex.P.2 is the endorsement. Ex.P.3 is the notice dtd.19.5.2017. Ex.P.4 is the postal receipt. Ex.P.5 is the unserved notice.
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14. The accused examined himself as DW1. His chief examination was concluded on 3.5.2017. In the chief examination the DW1 deposes that he had borrowed amount of Rs.10,000 in the year of 2014. At that time, the Complainant asked to give one blank Cheque. Therefore, the accused issued one Cheque in favour of the Complainant as security. The accused denies his signature and contents of cheque. He further deposed that the notice was not served to his address. But, the defence of the accused is not proved because he was not available in the court for the cross-examination. Therefore the defence of the accused is not fit to believe as true. The accused has not produced better documents than the documents of Complainant. Under such circumstances, the presumption mentioned u/Sec.139 of N.I. Act can be extended to the case of the Complainant. The evidence of Complainant is not rebutted. The Cheque of the accused found in the possession of Complainant. Therefore, adverse presumption may be drawn against the accused presuming that the accused issued disputed Cheque in favour of the Complainant only for payment of amount of Rs.90,000/-. The proceeding is initiated in the year of 2014. Suppose the said amount is deposited in the bank, the Complainant would have get an attractive 7 CC.No53899/2014 interest. Therefore, the said amount is to be compensated with interest. Hence, Point No.1 is answered in the Affirmative
15. POINT No.2 : In view of discussion held in Point No.1, I proceed to pass the following :
ORDER Acting under Section 255 (2) of Cr.P.C. the accused is hereby convicted for the offence punishable under section 138 of Negotiable Instrument Act by sentencing to pay fine of Rs.1,45,000/- (Rupees One Lakh Forty-Five Thousand only). Out of which Rs.1,40,000/- (Rupees One Lakh and Forty Thousand only) shall be paid as compensation to the Complainant in term of Sec.357 (1) of Cr.P.C and Rs.5,000/- (Rs. Five Thousand only) shall be paid to the State Ex-Chequer as fine. In default of payment of fine accused shall suffer simple imprisonment for a tenure of 3 months.
The bail bonds executed by the accused stands continued.
Office is directed to comply the Sec.363 (1) of Cr.P.C.
(Dictated to the Stenographer, transcript computerized by her, revised corrected and then pronounced by me in the open Court on this the 2nd day of July, 2018) (KAMALAKSHA.D), LVIII ACMM, BENGALURU 8 CC.No53899/2014 ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : Mr. R. Vengala Reddy
2. Documents marked on behalf of complainant:
Ex.P.1 : Cheque Ex.P.2 Band endorsement Ex.P.3 Office copy of Legal Notice Ex.P.4 Two postal receipts Ex.P.5 Unserved postal cover
3. Witnesses examined on behalf of Accused :
D.W.1 Mr. Aiaz
4. Documents marked on behalf of Accused : NIL (KAMALAKSHA.D), LVIII ACMM, BENGALURU.