Bangalore District Court
And Which On Presentation Of The Said vs Pleaded Not Guilty And Claims To Be Tried on 15 February, 2020
IN THE COURT OF THE XXVIII ADDL.CHIEF
METROPOLITON MAGISTRATE, NRUPATHUNGA ROAD,
BANGALURU CITY
Dated this the 15th day of February, 2020
Present:- ABDUL RAHIM HUSSAIN SHAIKH
B.Sc, B.Ed, LLB(Spl)
XXVIII A.C.M.M
Bengaluru City.
CC.No.5766/2017
JUDGMENT U/S 355 OF Cr.P.C.
1. Sl.No. of the case : CC.No.5766/2017
2. The date of commence of evidence: 19.11.2019
3. The date of Institution : 09.02.2017
4. Name of the Complainant :M/s Mahindra & Mahindra
Financial Services Limited
A Company incorporated
under the Companies Act,
Having its office at No.4,
9th main, Bhanashankari
Opp G.K Kalyana Mantappa,
Bengaluru- 560070.
Rep by its Attorney Holder,
Mr. Naveen
5. Name of the Accused : Venkatswamy
No.70 KR Puram,
Balaji Nilaya 5th main,
2nd cross Old Extn
Bangalore-560036.
6. The offence complained
2 CC.No.5766/2017
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 : 15.02.2020
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 gist of the complainant's case is that:
The complainant is a leading non banking finance company engaged primarily in the business of leasing and finance, hire purchase and advancement of loan and the accused had applied for a vehicle loan and the same was sanctioned to the accused vide Loan account No.2319088. Towards the discharge of the aforesaid loan the accused had issued the account payee cheque bearing No.359425 dt:30.11.2016 for Rs.3,20,400/- drawn on State Bank of Mysore in favour of the 3 CC.No.5766/2017 complainant and which on presentation of the said cheque with their banker Standard Chartered Bank, Bengaluru, it was returned with an endorsement 'Insufficient Funds' with a memo dated 05.12.2016 and thereafter on 30.12.2016 complainant got issued a legal notice through RPAD. It is the case of the complainant that even after lapse of 15 days from the date of receipt of the notice the accused fails to pay the cheque amount. Accordingly, the complainant has filed the compliant against the accused for the offence punishable u/s 138 of N.I. Act on 09.02.2017.
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 was sufficient material, plea was recorded against the accused on 12.10.2017 and explained to the accused in his vernacular, for which the accused pleaded not guilty and claims to be tried. 4 CC.No.5766/2017
4. In order to prove the case, the Legal Manager of the complainant Company Naveen examined as PW2 and got marked Ex.P1 to P9 and closed the side. Then the statement u/s 313 Cr.P.C was recorded on 05.04.2019, wherein the incriminating evidence appeared against the accused was read over and explained which was denied by the accused. Accused neither examined nor got marked any documents on his behalf.
5. When the matter posted for cross of complainant, accused and complainant jointly submitted memo stating that accused has agreed pay a sum of Rs.2,50,000/- to the complainant as full and final settlement and towards the payment of the said amount accused paid on 14.02.2020 by issuing Demand drift vide No.165693 dt:13.02.2020 for Rs.2,50,000/-, drawn on Karnataka Bank Ltd, Krishnarajapuram branch (964), in favour of the complainant.
Further the complainant has undertaken and assure the accused that, they would hand over the NOC 5 CC.No.5766/2017 in respect of hire purchase and advancement of loan for a vehicle loan vide Loan account No.2319088 and further assist for the cancellation of the HP in respect of the vehicle bearing No.KA53MA2399:Maruti Ertiga VDI involved in the above case within 30 days from the date of clearance of the above demand draft of Rs.2,50,000/-. Further the complainant assured the accused that they will cancel/destroy all the documents, cheques etc, obtained by them as security purpose from the accused for the above vehicle loan immediately after clearance of the Demand draft of Rs.2,50,000/- towards the full and final settlement.
6. Both the accused and the complainant along with their counsels prayed to pass the judgment to that effect on the joint memo. In the instant case PW1 was not cross examined nor any cogent evidence and relevant documents had been produced by the accused to disprove the case of the complainant.
6 CC.No.5766/2017
7. Heard the arguments and perused the material placed on record.
8. On the basis of the above facts, the following points arise for my consideration:
1) Whether the complainant proves that the accused towards discharge of legal recoverable debt issued cheque bearing No.359425 dated:30.11.2016 for Rs.3,20,400/-, drawn on State Bank of Mysore, Bengaluru in favour `of the complainant, on presentation for encashment it was returned as 'Insufficient funds' and inspite 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?
9. My findings on the above points are as under :
Point No.1: In the Affirmative 7 CC.No.5766/2017 Point No.2: As per final order, for the following:
REASONS
10. Point No.1:- In order to prove the case, Mr. Naveen, Legal Manager of the complainant Company examined as PW2 filed affidavit in lieu of examination-in-chief and has reiterated the allegations made in the complaint and oath and got marked documents Ex.P1 to Ex.P9. Ex.P1 is the power of attorney, Ex.P2 loan agreement, Ex.P2(a) is the signature of the accused, Ex.P3 is the account statement, Ex.P4 is the cheque, Ex.P4(a) is the signature of the accused, Ex.P5 is the bank memo, Ex.P6 is the cheque return advice, Ex.P7 is the copy of the legal notice, Ex.P7(a) is the postal receipt, Ex.P8 is the postal acknowledgment, Ex.P9 is the amended complaint, Ex.P9(a) is the original complaint. In the instant case PW1 was not cross examined nor any cogent evidence and relevant documents had been produced by the accused to disprove the case of the complainant. 8 CC.No.5766/2017
11. As noted supra when the matter posted for cross- examination of PW1, complainant and accused jointly submitted Memo stating that accused was ready to pay a sum of Rs.2,50,000/- to the complainant as full and final settlement and towards the payment of the said amount accused paid on 14.02.2020 by issuing Demand drift vide No.165693 dt:13.02.2020 for Rs.2,50,000/-, drawn on Karnataka Bank Ltd, Krishnarajapuram branch (964), in favour of the complainant.
12. It is the definite case of the complainant that the complainant is a leading non banking finance company engaged primarily in the business of leasing and finance, hire purchase and advancement of loan and the accused had applied for a vehicle loan and the same was sanctioned to the accused vide Loan account No.2319088. Towards the discharge of the aforesaid loan the accused had issued the account payee cheque bearing No.359425 dt:30.11.2016 for Rs.3,20,400/- drawn on State Bank of Mysore in favour of the 9 CC.No.5766/2017 complainant and which on presentation of the said cheque with their banker Standard Chartered Bank, Bengaluru, it was returned with an endorsement 'Insufficient Funds' with a memo dated 05.12.2016 and thereafter on 30.12.2016 complainant got issued a legal notice through RPAD. It is the case of the complainant that even after lapse of 15 days from the date of receipt of the notice the accused fails to pay the cheque amount. Accordingly, the complainant has filed the compliant against the accused for the offence punishable u/s 138 of N.I. Act on 09.02.2017. In the instant case PW1 was not cross examined nor any cogent evidence and relevant documents had been produced by the accused to disprove the case of the complainant.
13. In this case the complainant PW1 had deposed that accused had issued cheque Ex.P4 with his signature Ex.P4(a) in discharge of his legally enforceable debt. It is pertinent to note that PW2 is not cross examined by the accused counsel disputing the signature Ex.P.4 (a) in 10 CC.No.5766/2017 the disputed cheque nor the accused had lead any evidence to disprove the fact that the said signature Ex.P4(a) does not belong to him. In view of the same, the signature of the accused Ex.P4(a) in the disputed cheque Ex.P4 remains undisputed and unchallenged. It can be presume that the accused had admitted his signatures on the disputed cheque.
14. At this juncture I would like discuss the ruling reported in AIR 2018 Hon'ble Supreme Court 3601 (T.P Murugan (Dead) Thr.Lrs.V Bojan AND Posa Nandhi Rep.Thr, POA Holder, T.P Murugan v. Bojan) In this ruling at para-8 the Hon'ble Supreme Court has laid down the dictum of law that u/s 139 of the N.I Act, once a cheque has been signed and issued in favour of the holder, there is statutory presumption that it is issued in discharge of a legally enforceable debt or liability by referring to K.N.Beena v/s Muniyappan and Another, (2001) 8 SCC 458, para-6 and Rangappa v/s Shrimohan (2010) 11 SCC 411, 11 CC.No.5766/2017 para 26 . It is further held that the presumption is a rebuttable one, if the issuer of the cheque is able to discharge the burden that it was issued for some other purpose like security for a loan.
In the present case the accused has failed to produce any credible evidence to rebut the statutory presumption in the light of discussion made above. The complainant has proved the case by overwhelming evidence to establish that the cheque/Ex.P4 was issued by the accused towards discharge of an existing liability and legally enforceable debt.
15. In the instant case PW1 deposed that he had issued a legal notice Ex.P7 the accused requesting for payment of the outstanding balance through RPAD. On perusal of the document Ex.P7/legal notice & Ex.P7(a)/postal receipt it is crystal clear that the notice was duly served to the accused and inspite of the said notice accused has not paid the amount nor replied to the notice due remained undisputed and unchallenged. 12 CC.No.5766/2017
16. At this juncture in the light of principle laid down by the Hon'ble Apex Court of India in a decision reported in 2007 (3) Crimes 120 (SC) (C.C. Alavi Haji V/s Palapetty Muhammed & Anr), it is crystal clear that if notice sent through RPAD by correctly addressing drawer of the cheque, mandatory requirement of issue of notice in terms of (b) of proviso to u/s 138 of N.I. Act stands complied with. The evidence on record clearly establishes that the complainant sent the notice to the accused to the correct address through RPAD and the said notice is duly served to the accused as per the acknowledgment. Hence, sending legal notice to the correct address of the accused is in compliance with u/s 138(b) of N.I. Act as the dictum of law laid down in the above case. In the instant case accused neither issued reply nor paid cheque amount even after receipt of summons for the best reasons known to him. As noted supra when the matter posted for cross of PW1, complainant & accused jointly submitted Joint Memo 13 CC.No.5766/2017 stating that accused has agreed to pay a sum of Rs.2,50,000/- to the complainant as full and final settlement and towards the payment of the said amount accused paid on 14.02.2020 by issuing Demand drift vide No.165693 dt:13.02.2020 for Rs.2,50,000/-, drawn on Karnataka Bank Ltd, Krishnarajapuram branch (964), in favour of the complainant. Further both complainant and accused submitted that they have no objections for the Court to pass the judgment in accordance to the terms mentioned in the Joint Memo.
17. In view of the same it is clearly established that accused has admitting the transactions and issuing of the cheque in discharge of his liability. 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.
18. Point No.2:- Having regard to the facts and circumstances, I proceed to pass the following: 14 CC.No.5766/2017
ORDER The accused is found guilty for the offence punishable u/s 138 of N.I. Act.
Acting u/s 264 of Cr.P.C. the accused is convicted and sentenced to pay fine of Rs.500/-, in default shall undergo simple imprisonment for 15 days.
Acting u/s 357(3) of Cr.P.C as per the agreement between the parties in the joint memo the accused is directed to pay Rs.2,50,000/- to the complainant through Demand drift vide No.165693 dt:13.02.2020 drawn on Karnataka Bank Ltd, Krishnarajapuram branch (964), in favour of the complainant.
In default undergo simple imprisonment of two months.
The joint memo shall be the part and parcel of this order.
The bail bond executed by the accused shall stand cancelled.15 CC.No.5766/2017
Supply free copy of the judgment to the accused. (Dictated to Stenographer directly on the Computer, taken print out corrected, signed by me and then pronounced in the open court this the 15th day of February, 2020).
(ABDUL RAHIM HUSSAIN SHAIKH) XXVIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT:-
PW2 : Sri. Naveen LIST OF WITNESSES EXAMINED ON BEHALF OF THE DEFENCE:- Nil
LIST OF DOCUMENTS MARKED ON BEHALF OF THE COMPLAINANT:-
Ex.P1 : Power of attorney
Ex.P2 : Loan agreement
Ex.P3 : Account statement
Ex.P4 : Cheque
Ex.P4(a) : Signature of the accused
Ex.P5 : Bank Memo
Ex.P6 : Cheque return advice
Ex.P7 : Office copy of the legal notice
Ex.P7(a) : Postal receipt
Ex.P8 : Postal acknowledgment
Ex.P9 : Amended complaint
Ex.P9(a) : Original Compliant
LIST OF DOCUMENTS MARKED ON BEHALF OF THE
DEFENCE:-
Nil
XXVIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
16 CC.No.5766/2017
17 CC.No.5766/2017
Judgment pronounced in the
open Court vide separate order.
ORDER
The accused is found guilty for the offence punishable u/s 138 of N.I. Act.
Acting u/s 264 of Cr.P.C. the accused is convicted and sentenced to pay fine of Rs.500/-, in default shall undergo simple imprisonment for 15 days.
Acting u/s 357(3) of Cr.P.C as per the agreement between the parties in the joint memo the accused is directed to pay Rs.2,50,000/- to the complainant through Demand drift vide No.165693 dt:13.02.2020 drawn on Karnataka Bank Ltd, Krishnarajapuram branch (964), in favour of the complainant. In default undergo simple imprisonment of two months.
The joint memo shall be the part and parcel of this order.
The bail bond executed by the accused shall stand cancelled.
Supply free copy of the judgment to the accused.
XXVIII A.C.C.M, Bangaluru.