Bangalore District Court
Mr. N. Narayana Swamy vs Mr. B. Rajashekar on 6 January, 2018
IN THE COURT OF THE XII ADDL. CHIEF METROPOLITAN
MAGISTRATE, AT BENGALURU
Dated this the 6th day of January 2018
Present: Sri. Rajkumar .S.Amminbhavi., B.Com., LLB (Spl)
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
C.C.No. 33729/2014
Complainant: Mr. N. Narayana Swamy
S/o. Late Chikka Narasegowda
Since deceased by his LR's
1(a) Smt. Bhagya @ Bhagyamma
.C W/o. Late N.Narayanaswamy
Aged about 38 Years
1(b) Master N.Chethan Gowda
S/o. Late N.Narayanaswamy
Aged about 15 Years
1(c) Kum. N.Pallavi
D/o. Late N.Narayanaswamy
Aged about 14 Years
Since No.1(b) & (c) are minors
Represented by their mother and
Natural Guardian Sl.No.1(a)
All are R/at. No.443, 14th Cross,
Maruthi Nagar, II Stage
Sonnennahalli, Ullal Upanagar
Post, Bengaluru-560 056.
(By B.Keshava Murthy. Adv)
- Vs -
2 CC No.33729/2014
Accused: Mr. B. Rajashekar
R/at. No.1737, "Sai Krupa
Nilaya" 1st Floor, Pipeline Road
T.Dasarahalli
Bengaluru-560 057.
Working at :-
Mr. B.Rajashekar
Village Accountant
Office of Dy.Thasildar
BBMP Building
Near Nagarabhavi BDA Complex
Bengaluru-560 072.
(By. Kiran Kumar. Adv)
Offence complained of: U/s. 138 of the Negotiable
Instruments Act
Plea of the accused: Pleaded not guilty
Final Order: Accused is convicted
Date of order: 06.01.2018
******
JUDGMENT
This is a complaint filed under Sec.200 of Cr.PC against the accused for the offence punishable under Sec.138 of the Negotiable Instruments Act.
2. The facts of the complaint in brief are that, both the complainant and accused were and are well known to each other. On account of well acquainted with the complainant, the accused has approached the complainant and requested for financial assistance of Rs.3,50,000/- for his 3 CC No.33729/2014 financial difficulties on 16.02.2014. Accordingly, considering the request of the accused and on good faith and believed the words of the accused and in order to help, the complainant has advanced hand loan an amount of Rs.3,50,000/- to the accused and on that day the accused had agreed to repay the said amount within six months. After lapse of stipulated period, on repeated request and demand made by the complainant to the accused for repayment of the said amount and at that time the accused for discharge the said amount had issued cheque bearing No.375928, dated:06.11.2014 for a sum of Rs.3,50,000/- drawn on State Bank of India, Peenya Branch, Bengaluru in favour of the complainant and assured that, the said cheque would be honoured on its presentation and as per the assurance made by the accused, the complainant has presented the said cheque for encashment through his banker i.e., UCO Bank, Kengeri Branch, Benglauru, but it was dishonoured with an endorsement as "Funds Insufficient" on 08.11.2014 and thereafter, the complainant has informed the said fact to the accused, but the accused did not responded the same. Hence, the complainant had got issued the legal notice on 15.11.2014 through his counsel by RPAD, calling upon her to repay the said borrowed loan amount within 15 days from the date of receipt of this legal notice and it was duly served upon her. Despite service of the legal notice, the accused neither repaid the borrowed loan amount nor replied it.
4 CC No.33729/2014Hence, the complainant had constrained to file a complaint against the accused for the offence punishable under Section 138 of N.I. Act., which is well within time and based on the records available on record cognizance has been taken and registered it PCR.
3. After recording of the sworn statement of the complainant and complaint is registered in criminal case register and in the mean while the complainant was reported as died and to that effect, the counsel for the complainant has filed an application under Section 256(2) of Criminal Procedure Code 1973 seeking for bring the legal representative of deceased complainant and to substantiate the same along with the application produced the copy of the death certificate of the deceased complainant which was issued by the competent authority and after hearing the parties and that application was allowed and the legal representative of deceased complainant was brought on record and directed the counsel for the legal representative of deceased complainant to carry out the amendment in the cause title of the complaint and file amended complaint and accordingly, the counsel for the legal representative of the deceased complainant has filed amended complaint and after filing the amendment complaint and after issuance of summons to the accused, pursuant to the summons the 5 CC No.33729/2014 accused had appeared before this Court through his counsel and enlarged on bail. The substance of accusation was recorded and read over to the accused in his vernacular. He pleaded not guilty. Hence, claims for trail.
4. In order to prove the case of the deceased complainant his legal representative who is his wife, herself examined as PW.1 & got 11 documents marked as Ex.P.1 to Ex.P.11 and when the case was posted for cross of PW-1 and subsequently, inspite of giving sufficient opportunity, neither the accused nor his counsel, they have either failed to appear before this Court nor failed to cross-examine the PW-1 and to that effect NBW has been issued against him and same was and is un-executed and accordingly, his bail stand cancelled and his cash surety amount deposited by him at the time of enlarged on bail same was forfeited to the state and the accused has not at all challenged the evidence of PW-1 and the present case is summary trail and quasi-criminal in nature and thereby, the recording the statement of the accused under Section 313 of Cr.P.C., is dispensed with. As per the new amendment under Section 145(2) of N.I.Act., inspite of giving sufficient opportunity, neither the accused nor his counsel, they have failed to file an application to adduce their defence evidence. Since, the present complaint is summary trail and quasi-criminal in nature Hence, defence evidence is taken as no evidence. I am relying the citation reported 6 CC No.33729/2014 in AIR 2014 SC 2528 Indian Bank Association & others V/s. Union of India and others- Negotiable instructions Act (26 of 1881), Section 138, 143, 145- dishonour of cheque-summary trail-directions given to trail Court to follow procedures for speedy and expeditious disposal of cases falling under Section 138 of N.I.Act. Thereby appearance of the accused is dispensed with and case was posted for arguments.
5. Heard arguments.
6. The following points arise for my determination;
1. Whether the complainant proves that the accused had issued cheque bearing No.375928, dated:06.11.2014 for a sum of Rs.3,50,000/- drawn on State Bank of India, Industrial Estate Tumkur Road Branch, Bengaluru for discharge of the amount and when the said cheque presented for encashment, it was dishonoured with an endorsement "Funds Insufficient" and after issuance of the legal notice he fails to repay the said amount and Thereby, the accused have committed offence punishable U/s. 138 N.I.Act?
2. What order ?
7. My answer to the above points are;
Point No.1 : In the Affirmative
Point No.2 : As per final order for the
following;
7 CC No.33729/2014
REASONS
8. POINT NO.1: On perusal of the evidence of PW-1 who is none other than wife of the deceased complainant, she has reiterated as per the averments made in the complaint and she has got marked 11 documents namely, cheque which is marked as Ex.P1, the signature of the accused therein which is marked as Ex.P1(a), bank endorsement which is marked as Ex.P2, the office of the legal notice which is marked as Ex.P3, two postal receipt which are marked as Ex.P4 & Ex.P5, postal acknowledgment which is marked as Ex.P6, returned postal cover which is marked as Ex.P7, on demand pronote an consideration receipt which is marked as Ex.P8 and Ex.P9 and therein signature of the accused which are marked as Ex.P8(a) and Ex.P9(a), the certified copy of the sale deed dated: 02.02.2007 which is marked as Ex.P10, the certified copy of the agreement of sale which is marked as Ex.P11.
9. Though the case was posted for cross of PW-1. Inspite of giving sufficient opportunity neither counsel for the accused nor the accused, they have failed to cross- examine the PW-1. Hence, cross of PW-1 is taken as no cross. Since the present complaint is summary trial in nature and thereby, recording the statement of accused under Section 313 of Cr.P.C., is dispensed with and inspite of giving sufficient opportunity, he has failed to adduce his 8 CC No.33729/2014 defence evidence. Hence, defence evidence is taken as no evidence and after heard the arguments, the case is posted for judgement.
10. On perusal of the averments made in the complaint and also documents produced by the complainant is that, it is an admitted fact that, even after issuance of the legal notice by the complainant to the accused prior to filing of the said complaint, the accused has not gave any reply notice. Therefore, prior to filing of the said complaint, the complainant had complied all the necessary ingredients under Section 138 of N.I.Act. Though the accused has appeared before this Court through his counsel and enlarged on bail, he pleaded not guilty and claims for trail and to substantiate the said defence he has not cross- examined the PW-1 and inspite of giving sufficient opportunity he has failed to adduce his defence evidence and he has not produced any iota of documentary evidence, except his oral testimony. Since the evidence of PW-1 is unchallenged one. On perusal of the Ex.P1 there is no any ambiguity. Since the complainant has proved his case by adducing cogent and corroborative evidence, the accused had failed to cross examine the PW-1 and failed to defend his case by adducing his defence evidence.
11. Further, with respect to the source of income of the deceased complainant, PW-1 has produced Ex.P10 and 9 CC No.33729/2014 Ex.P11 and so also the PW-1 has produced the on demand pronote and consideration receipt which has been entered between the accused and deceased complainant with respect to the loan in question and the said Ex.P8 and Ex.P9 has been produced by the PW-1 for the collateral purpose.
12. If really, he was not at all borrowed the loan in question from the complainant and he has not at all issued the Ex.P1 for discharge of the loan in question to the complainant, he ought to have gave stop payment instruction to his banker, he ought to have gave reply notice to the legal notice issued by the complaint, he ought to have adduce his defence evidence, he ought to have cross-examine the PW-1. Therefore, non-performing the aforesaid legal proceedings that itself, it is very much fatal to the alleged defence set-up by the accused during the course of recording of his accusation. There is no dispute that, Ex.P1 cheque is belonging to his own bank account cheque and signature found on the Ex.P1(a) is his own signature. There is no any ambiguity on perusal of Ex.P1. It can be presumed that, the accused has issued the Ex.P1 to the complainant knowing fully well without having sufficient funds in her bank account with an intention to defeat the claim of the complainant.
10 CC No.33729/201413. It can be presumed that, no any ordinary prudent man will issue signed blank cheque to any other persons without having monetary transaction between themselves. As per the Section 73 of the Indian Evidence Act., this Court is having ample power with respect to compare the admitted signature and disputed signature. Therefore, on perusal of the Ex.P1 therein signature of the accused Ex.P1(a) the accused had put his signature at the time of filing the vaklath and enlarged on bail and the accused had put her signature at the time of recording of his accusation and signature of the accused which are Ex.P8(a) and Ex.P9(a) are one and the same. Hence, the probability of the preponderance is higher on the side of the complainant, rather than the accused.
14. Looking to the conduct of the parties to this proceedings, both the deceased complainant and accused are very well known to each other and the deceased complainant has advanced the loan in question in the year 2014 and the accused for discharge the loan in question had issued Ex.P1 in the year 2014 and she was also executed Ex.P8 and Ex.P8 already three years have elapsed and there is no averments in the complaint with respect to awarding any rate of interest and there is no provision to awarding simple interest upon the principle amount. Though this Court is having ample power with respect to awarding simple interest as per the provision of 11 CC No.33729/2014 Section 27 of the General Clauses Act. Therefore, awarding simple interest at the rate of 6% per annum upon the principle amount from 2014 for period of three years is just and proper to meet the ends of justice. Hence, interest an amount of Rs.63,000/- upon the principle amount of Rs.3,50,000/- and awarding cost of litigation an amount of Rs.2,000/- since, the complainant has filed the present complaint in the year 2014 onwards about more than three years have elapsed and trail faced by the complainant is just and proper to meet the ends of justice. Therefore, the accused is liable to total an amount of Rs.4,15,000/- to the complainant.
15. Ordinarily offence under Section 138 of N.I.Act "mensrea" is not essential, under Section 138 of N.I.Act , is bring into operation rule of strict liability, whereas, "mensrea" is essential ingredients in criminal offences. Therefore, The complainant has proved his case against the accused, since offence under Section 138 of N.I.Act element of Mensrea has been excluded in general public interest to curb the instances of dishonouring of cheques and to lend the credibility to the commercial transaction. Therefore, in this case also the accused knowing fully she was borrowed the loan in question from the complainant and for discharge the loan in question she has issued the Ex.P1 to the complainant. Since the present complaint is summary trial and quasi-criminal in nature, it is like recovery 12 CC No.33729/2014 proceedings and punishment is fine or in default of it simple imprisonment. In this context I am relying the citation reported in AIR 2009 NOC 404 (Kerala) in Babu V/s. K.J. Joseph. It is argued that, it is evident from Section 356(6) of Cr.P.C., that, in case of judgment is one of acquittal or fine only. It is not necessary for personal presence of the accused to receive the copy of the judgment. Hence, in this case also in the absence of the accused, the Court will pass the judgment.
16. Hence, in the light of the above observation, the complainant has successfully proved that, the accused has committed offence punishable under Section 138 of N.I. Act with these reasons, I am the opinion that, the complainant successfully established before the Court, the accused has issued Ex.P1 to the complainant for the legally recoverable debt and awarding interest and cost of litigation. Since the accused is not liable to pay fine amount to the state as at the time of enlarged on bail, he has deposited cash surety amount before this Court and that amount has been already forfeited to state, as inspite of issuance of the NBW he has failed to appear before this Court. Therefore, I answer the point No.1 in the affirmative.
17. Point No.2 :- In view of my findings on Point No.1 in the affirmative, I proceed to pas the following...
13 CC No.33729/2014ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
The accused shall pay a fine of Rs.4,15,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for two months.
Further, it is ordered that, said fine amount of Rs.4,15,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C.
The bail bond and surety bond of the accused stands cancelled.
Free copy issued to the accused.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified, corrected and then pronounced by me in the open Court on this the 6th day of January 2018).
(Rajkumar.S.Amminbhavi) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the complainant:
PW.1 Bhagya @ Bhagyamma .C 14 CC No.33729/2014 List of documents exhibited on behalf of the complainant:
Ex.P.1 Cheque Ex.P.1(a) Signature of the accused Ex.P.2 Bank endorsement Ex.P.3 Office copy of the legal Notice Ex.P.4 & 5 Two postal receipt Ex.P.6 The postal acknowledgement Ex.P.7 Returned Postal cover Ex.P.8 & 9 Pronote and consideration receipt
Ex.P.8(a) & 9(a) Signature of the accused Ex.P.10 The certified copy of the sale deed dated:
02.02.2007 Ex.P.11 The certified copy of the advance sale agreement dated:15.02.2014 List of witnesses examined on behalf of the accused :
NIL List of documents exhibited on behalf of the accused :
NIL XII Addl. Chief Metropolitan Magistrate, Bengaluru City.15 CC No.33729/2014
06.01.2018.
Complainant : SKG Accused : KHJ Judgment.
(Vide separate judgment pronounced in the open Court) ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
The accused shall pay a fine of Rs.4,15,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for two months.
Further, it is ordered that, said fine amount of Rs.4,15,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C.
The bail bond and surety bond of the accused stands cancelled.
Free copy issued to the accused.
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
16 CC No.33729/2014 17 CC No.33729/2014Heard Inference 18 CC No.33729/2014