Bangalore District Court
Anjaya Chary Boodupally vs M/S. Sai Charitha Infra Developers on 3 March, 2021
IN THE COURT OF THE XX ADDITIONAL SMALL CAUSES
JUDGE AND ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE AND M.A.C.T., BENGALURU (SCCH-22)
PRESENT : Smt.Shakunthala.S.,
B.A.., LL.B.
XX Addl. Small Causes Judge
and A.C.M.M., Bengaluru.
DATED : This the 3rd Day of March 2021.
C.C. NO.4841/2019
Complainant - Anjaya Chary Boodupally,
Aged 43 years,
Son of Sri. Brahmaiah Boddupally,
Residing at No.F7, PSR Arcade,
No.34/A Guddadahalli, Main Road,
Hebbal, R.T. Nagar Post,
Bangalore-560032.
(Rept: By Sri.R.Krishna Murthy, Advocate)
- Versus -
Accused - 1. M/s. Sai Charitha Infra Developers,
"Perika Bhavan", Aakash Ganga,
Flat No.501, Behind Khairatabad Road,
Hyderabad- 500004, Telangana State,
Represented by its Partner.
(Rept:By Sri. S.Venu Gopal Krishna, Advocate)
2. Sri. Vinjapuri Karunakar,
Aged 38 years,
Son of Sri, V Prabhakar,
Partner, M/s. Sai Charitha Infra Developers,
"Perika Bhavan", Aakash Ganga, Flat
No.501, Behind Khairatabad Road,
Hyderabad-500004, Telangana State,
(Rept:By Sri. S.Venu Gopal Krishna, Advocate)
SCCH-22 2 CC No.4841/2019
Also At:
(a) C/o Vishwa Constructions and
Infra Developers,
Flat No.410, Sai Mitra Estate,
Beside Maszid, Amberpet,
Hyderabad-500013.
(b) Srinivasam Homes, H.No.5-179,
Peddakalwala Village, Peddapalli,
Peddapalli District-505174,
Telangana State,
(c) No.1-15/39, Value Homes,
Kaloji Nagar, Rekurthy,
Karimnagar Mandal,
Karimnagar-505001.
Dated of Institution : 30.08.2019
The offences complied : Under Sec.138 of the
off or proved Negotiable Instrument Act
Plea of the accused : Pleaded not guilty
Date of commencement : 16.08.2019
of recording evidence.
Final Order : Accused is Convicted
Date of such order : 23.02.2021
(SHAKUNTHALA.S.)
XX ADDL.S.C.J. & A.C.M.M.,
BENGALURU.
:: JUDGMENT ::
The Complainant filed this complaint against the accused under SCCH-22 3 CC No.4841/2019 Section 200 of Cr.PC for the offence punishable under Section 138 of Negotiable Instrument Act.
2. The brief facts of the complainant case are as follows; The accused no.1 is a partnership firm and represented by its partner accused no.2. Accused no.1 engaged in the business of development of lands, construction of apartments, marketing of plots, etc and known to him for the past 3 years as a friend.
3. Taking advantage of his acquaintance on 07.06.2018, accused no.2 informed him that accused no.1 is in need of money for its urgent business needs and in his capacity as a partner requested him to lend an amount of Rs.3,00,000/- as a loan to accused no.1 firm and accused no.2 would execute an on demand promissory note in his personal capacity and agreed to give interest on the said amount at 1.5% per month.
4. Believing the words of accused no.2 he lent Rs. 3,00,000/- that is on 09.06.2018 Rs.1,00,000/- through IMPS vide IMPS 00055852763MOAAIRF00 to M/s. Sai Charitha Infra Developers. Rs. 1,00,000/- on 23.06.2018 through IMPS vide IMPS 00056790816MOAAJRGRG4 and Rs. 1,00,000/- on 23.06.2018 through IMPS vide IMPS00056807181MOAAJRQSW2. SCCH-22 4 CC No.4841/2019
5. Further on the request of accused no.2 he also lent another amount of Rs.2,00,000/- in cash to accused no.2 on 23.06.2018 totally he lent Rs.5,00,000/- to accused no.2 and he has promised and executed an on demand promissory note in his favour on 23.06.2018 acknowledging the receipt Rs.5,00,000/-.
6. On 21.04.2019, he informed accused no.2 to repay the loan of Rs.5,00,000/- with interest. On the same day, accused no.2 gave a cheque bearing no.000005, dated 27.04.2019 for Rs.5,00,000/- drawn on Gayatri Co-Operative Urban Bank Ltd., Karimnagar-505001, Telangana State, towards repayment of the loan. At the time of giving the cheque, he agreed to pay the interest in the next about 3 months time.
7. The said cheque presented for encashment through its banker Canara Bank, Hebbal, Bengaluru for encashment on 01.06.2019. The said cheque dishonoured for the reason funds insufficient. Thereafter he got issued legal notice dated 27.06.2019 to both the accused calling upon both of them to pay the amount within 15 days and the said notice was served, in spite of it the accused neither replied nor repaid the cheque amount and thereby committed an offence punishable Under Sec.138 of N.I. Act. Hence, this complaint. SCCH-22 5 CC No.4841/2019
8. In response to the summons, accused has appeared through their counsel and enlarged on bail. The substance of accusation was recorded and read over by my learned predecessor, pleaded not guilty and claims to be tried.
9. Complainant in order to establish its case examined himself as PW.1 and in support of oral evidence got marked 14 documents at Ex.P1 to Ex.P14. Thereafter accused raised his defence during cross- examination of PW.1 by denying the issuance as well as execution of cheque and the signature found therein as well as the execution of promissory note. The statement of accused as required under Section 313 of Cr.P.C was recorded and read over to them, for which he denied the incriminating materials as false and not adduced any evidence.
10. Heard arguments.
11. On perusal of oral as well as documentary evidence the points that arise for my determination are as follows:
1) Whether the complainant proves that Ex.P2 cheque has been issued by the accused towards discharge of legal liability and the same was dishonored on its presentation for the reason "Funds Insufficient" and further complied the mandatory provisions of Sec. 138
(a) to (c) of N.I.Act and further the complainant proves beyond doubt that the accused without having sufficient SCCH-22 6 CC No.4841/2019 funds in his account, issued cheque towards discharge of his liability and failed to make good to the complainant after its dishonour within the stipulated period and thereby, committed an offence punishable under section 138 of N.I.Act?
2. What Order?
12. My answer to the above points are under :
Point No.1 - In the Affirmative
Point No.2 - As per final order for the
following
:: REASONS ::
POINT No.1:-
13. Under Section 138 of the N.I Act the offence will complete only if the mandatory provisions of Sec. 138 (a) to (c) are complied, when the cheque was issued towards discharge of legal liability and it was dishonoured in the credit of the accused.
14. In this context, the complaint averments reveal that the accused being known to him accordingly for the purpose of business the accused no.2 requested him to lend an amount of Rs.3,00,000/- to accused no.1 firm and also informed that if the said amount would be considered as a loan to accused no.2 and he executed an on demand promissory note in his personal capacity and also give interest at 1.5% p.m. Accordingly he lent a sum of Rs.3,00,000/- to the accused from SCCH-22 7 CC No.4841/2019 the account of himself and his wife jointly and also Rs.2,00,000/- by cash. Accused no.2 executed an on demand promissory note acknowledging the receipt of totally Rs.5,00,000/-. That as agreed he failed to repay the same and on demand he got issued a cheque for Rs.5,00,000/- and when presented dishonoured for the reason funds insufficient and in spite of service of notice not choosen to repay nor reply to the notice.
15. The same has been reiterated in his affidavit filed in lieu of his examination-in-chief and in support of oral evidence got marked Promissory Note at Ex.P1, cheque at Ex.P2, signature of accused at Ex.P2(a), Bank endorsement at Ex.P3, legal notice at Ex.P4, five postal receipts at Ex.P5 to Ex.P9, Postal acknowledgment at Ex.P10, 4 Postal covers at Ex.P11 to Ex.P14 and 4 notice copies at Ex.P11a to Ex.P14a.
16. In order to rebut the case of complainant the accused raised his defense during cross-examination of PW.1 that the hand writings on the cheque not written by them and the signature found on Ex.P1 and Ex.P2 cheque and promissory note are different signatures. Accused no.2 is financially sound therefore there is no need for him to borrow the money and just to grab the money from them got filed this complaint. Even though the same has been suggested to PW.1 which SCCH-22 8 CC No.4841/2019 have been specifically denied by PW.1.
17. On perusal of Ex.P1 which is in Telugu language but the terms have been also mentioned in English wherein receipt of Rs.5,00,000/- has been obtained for business and personal need so also two witnesses that is Suresh Kumar.G and D. Murali Krishna have put their signatures. Though accused contended that the signatures found on Ex.P1 and Ex.P2 cheque that is Ex.P2a signature are different, except suggestion, not made any efforts to disprove that Ex.P1, Ex.P2 documents in which the signature found not belonged to him. Further more the accused contended that Ex.P1 is in Telugu Language but the name, address, amount, purpose has been mentioned in English and interest also mentioned and witness also put their signatures on English and translated document of the same also produced.
18. Moreover Ex.P4 served to accused as per Ex.P11 but in spite of service of notice has not choosen to reply to the said notice. On the contra the suggestion itself indicates that the accused having knowledge in respect of issuance of Ex.P2 cheque and also in respect of execution of Ex.P1. Further though Ex.P1 is in Telugu Language but a translated copy of the same has been produced by the complainant and not even single suggestion has been made in respect of Ex.P1, SCCH-22 9 CC No.4841/2019 except suggested during cross-examination that the signature in promissory note and Ex.P2 cheque are different signatures and there is no necessity for accused no.2 to borrow money from him and to grab the money filed the case except that nothing has been elicited the circumstances under which the complainant holds the instrument Ex.P2.
19. In the existence of documentary evidence as well as the suggestions made to PW.1 and the defence raised by the accused is not at all probable one to believe his contention and the accused failed to rebut the case of the complainant. In the existence of Ex.P1 and Ex.P2 which clearly establishes the transaction and in pursuance of the same issuance of Ex.P2 cheque wherein though accused contended that the signatures are different but not made any efforts to disprove Ex.P1 and Ex.P2 and also failed to establish that the notice though served on him in respect of Ex.P2 and not even a single suggestion made in respect of service of notice as such in the existence of oral as well as documentary evidence the complainant establishes his case by producing cogent clear and convincing evidence and even during recording of 313 statement of the accused he has not stated any thing with regard to the case of complainant accordingly, I have no reason to SCCH-22 10 CC No.4841/2019 disbelieve the case of complainant.
20. Further under Section 138 of N.I Act offence will complete only if the mandatory provisions of Section 138 (a) to (e) N.I Act are complied, that the cheque was issued towards discharge of legal liability and it was dishonoured for Insufficient funds in the account of the accused. Ex.P2 cheque dated 27.04.2019 and the said cheque returned for Funds Insufficient as per endorsement at Ex.P3. The documents reveal that the cheque has been presented within 3 months from the date of issue and legal notice was issued on 27.06.2019, which is within time limit from the date of dishonour. The said notice was duly served to the accused and from that date within the stipulated period the complaint came to be filed.
21. On perusal of oral as well as documentary evidence as well as the suggestions made to PW.1 itself clearly indicates that there is no dispute in respect of signature on Ex.P2(a) cheque itself is a proof to hold that Ex.P2 belonged to accused and at the time of presentation of the cheque there was no sufficient fund in the account. If at all the cheque issued towards repayment of the loan amount then what efforts made by accused in respect of cheque and he has not made any efforts to stop payment of the account. The suggestion it self indicates that he SCCH-22 11 CC No.4841/2019 is having knowledge in respect of Ex.P2 cheque. Such being the thing he would not have made any efforts and failed to do so. Therefore, I am of the view that the complainant complied all the mandatory provisions of Section of 138 (a) to (c) of N.I.Act.
22. Since the accused having failed to make good to the complainant within stipulated period, has committed an offence punishable under Section 138 of the N.I Act. There is no contra evidence available on record to over come Section 118 and 139 of N.I.Act. Accordingly, I hold that the accused is found guilty of the offence punishable under Section 138 of N.I.Act, hence I answer point No.1 in the affirmative.
23. POINT No.2: In view of the above discussion, I proceed to pass the following:
:: ORDER ::
Accused no. 1 and 2 are convicted for the offence punishable under section 138 of the N.I.Act by acting U/ sec. 255 (2) of Cr.P.C and accused No. 2 is sentenced to pay a fine of Rs.
5,10,000/ (Five Lakh Ten Thousand only). In default to pay fine, accused no.2 shall undergo simple imprisonment for a period of one year.SCCH-22 12 CC No.4841/2019
Further acting U/Sec. 357 (1)
(b) of Cr.P.C on recovery of entire fine amount of Rs.5,10,000/ shall be paid to the complainant as compensation.
The bail bond and surety bond of the accused no.2 shall stand cancelled.
Supply a free copy of the judgment to the accused no.2 with due endorsement.
(Dictated to the stenographer, transcribed by her, corrected by me and then pronounced in the open court on this the 23 rd day of February 2021.) (SHAKUNTHALA.S) XX A.S.C.J. & A.C.M.M., Bengaluru.
:: ANNEXURE ::
List of witnesses examined on behalf of the complainant:
P.W.1 - Sri. Anjaya Chary Boddupally List of witnesses examined on behalf of the accused:
---- Nil ----
List of documents marked on behalf of the complainant:
Ex.P.1 - Promissory Note
Ex.P.2 - Cheque
Ex.P.2(a) - Signature of accused
Ex.P.3 - Bank Endorsement
Ex.P.4 - Legal notice
Ex.P.5 & 9 - 5 Postal receipts
Ex.P.10 - Postal Acknowledgment
Ex.P.11 to 15 - 4 Postal covers
SCCH-22 13 CC No.4841/2019
Ex.P.11a to 15a- 4 Notice copies
List of documents marked on behalf of the accused:
---- Nil ----
(SHAKUNTHALA.S.) XX A.S.C.J. & A.C.M.M., BENGALURU.