Bangalore District Court
Sri K. Raghava Rao vs In Sri B.K. Jyothi Prakash Shetty on 10 August, 2015
IN THE COURT OF XXI ADDL. CHIEF METROPOLITAN
MAGISTRATE, BANGALORE.
DATED THIS THE 10th DAY OF AUGUST, 2015.
PRESENT: SMT.B.SHARADHA, B.Sc., LL.B
XXI ADDL. C.M.M., BANGALORE.
C.C.Nos.22130/10 & 22132/10
COMPLAINANT: Sri K. Raghava Rao, S/o
(In both the cases) Gowreshwara Rao, Prop:Danka
Industries, Aged about 45 years,
No.142, I Floor, II Main Road,
Chamarajapet, Bangalore-560 018.
Vs.
ACCUSED IN Sri B.K. Jyothi Prakash Shetty, S/o
CC.No.22130/10:- Sri Krishna Murthy, Aged about 55
years, Flat No.9, Yeshodha
Apartments, Gulmohar Colony, Near
Sanjeevini Eye Hospital, Sangli-
416416, Maharashtra.
Also at:-
Sri B.K. Jyothi Prakash Shetty, S/o
Sri Krishna Murthy, Aged about 55
years, Vasavi Aquarium, No.37, Old
Police Line, Badam Chowk, Inamdar
Building, Sangli-416 416,
Maharashtra.
2
ACCUSED IN Sri B.J. Kiran Kumar, S/o Sri Jyothi
CC.No.22132/10:- Prakash Shetty, Flat No.9, Yeshodha
Apartments, Gulmohar Colony, Near
Sanjeevini Eye Hospital, Sangli-
416416, Maharashtra.
Also at:-
Sri B.J. Kiran Kumar, S/o Sri Jyothi
Prakash Shetty, Vasavi Aquarium,
No.37, Old Police Line, Badam
Chowk, Inamdar Building, Sangli-
416 416, Maharashtra.
-: C O M M O N J U D G M E N T :-
The complainant filed the 2 separate complaints in U/s
200 Cr.P.C. for the offence punishable under Section 138 of
N.I. Act. Both the cases are taken up together for
consideration as they are interlinked litigations between the
same parties.
2. The brief facts of the cases of the complainant is that
the accused in both the cases are father and son and they are
known to him. With that acquaintance the accused in
CC.No.22130/10 borrowed hand loan of Rs.6,50,000/- on
14.10.2009 to perform the marriage of his son by agreeing to
repay the said loan in January 2010 by selling his property at
Sangli. The complainant also claims that the accused in
CC.No.22132/10 borrowed hand loan of Rs.1,22,000/- for his
business purpose.
21st ACMM
C.C.No.22130/10
3 & C.C.No.22132/10
3. For discharging the said debt, the complainant
claims that the accused in CC.No.22130/10 has issued a
Cheque Bearing No.089664 Dated 29.03.2010 for a sum of
Rs.6,50,000/- drawn on ICICI Bank Ltd., Sangli Branch,
Sangli and the accused in CC.No.22132/10 has issued a
Cheque Bearing No.155462 Dated 14.03.2010 for a sum of
Rs.1,22,000/- drawn on Vijaya Bank, Maruthi Road Branch,
Sangli, for discharging their dues.
4. When the said 2 cheques were presented for
encashment, the same were dishonoured with bank
endorsement as "Payment Stopped by Drawer" in
CC.No.22130/10 and as "Funds Insufficient" in
CC.No.22132/10. The dishonour of the cheques was
intimated to the accused in both cases separately through the
legal notice and the notices were duly served on the accused.
The accused in both cases submitted their untenable reply
and failed to pay the cheque amount within the stipulated
period and thereby committed an offence punishable U/s.138
of NI Act.
5. After recording the sworn statement of the
complainant and by perusing the documents and hearing the
arguments, cases were registered against the accused for the
offence punishable U/s.138 of NI Act and summons was
issued to the accused. The summons issued to the accused
has been duly served in both the cases and the accused
appeared before the court through there counsel in both the
4
cases and filed bail application U/s.436 of Cr.P.C. The
accused in both the cases were enlarged on bail and plea was
recorded separately in both the cases. The accused in both
the cases pleaded not guilty and claimed to be tried, when the
substance of the accusation was read over and explained to
the accused and thereafter, the cases were posted for
complainant evidence.
6. The complainant got examined himself as PW.1
separately in both the cases and got marked Ex.P1 to Ex.P9
in CC.No.22130/10 and Ex.P1 to Ex.P10 in CC.No.22132/10
and closed his side of evidence. The statement of the accused
was recorded U/s.313 Cr.P.C., separately in both the cases.
The accused in both cases in their 313 statement denied the
incriminating evidence appearing against them and submitted
that they have defence evidence.
7. Heard the arguments of both the learned advocate
for the complainant and the accused, and the cases were
posted for judgment.
8. The counsel for the accused relied upon the following
decisions:-
1. ILR 2009 Karnataka 172
2. 2013(3) KCCR 1940
3. 2012(3) KCCR 2057
4. 2009(4) Mh. L.J. 155
5. 2012(4) KCCR 3569
21st ACMM
C.C.No.22130/10
5 & C.C.No.22132/10
6. 2013 SAR (Crl.) 373
7. 2013 SAR (Crl.) 123
8. 2010(1) DCR 59
9. 2008 All. M.R. (Crl) 314 (SC)
10. 2009 All. M.R. (Crl) 1995
11. AIR 2008 SC 1325
12. 2008 All. M.R. (Crl) 461
13. AIR 2001 SC 970
14. 2013 SAR (Crl.) 1129
15. 2006 (3) AIR KAR 452
9. After going through the evidence, documents and the
records, the points that arise for my consideration are:-
CC.No.22130/10
1) Whether complainant proves that the accused
had issued a Cheque Bearing No.089664
Dated 29.03.2010 for Rs.6,50,000/- drawn
on ICICI Bank Ltd., Sangli Miraj Road, Sangli
to discharge his liability?
2) Whether the complainant proves that the
accused has committed an offence punishable
U/Sec.138 of N.I. Act?
3) What order?
CC.No.22132/10
1) Whether complainant proves that the accused
had issued a Cheque Bearing No.155462
Dated 14.03.2010 for Rs.1,22,000/- drawn
on Vijaya Bank, Maruti Road, Sangli to
discharge his liability?
6
2) Whether the complainant proves that the
accused has committed an offence punishable
U/Sec.138 of N.I. Act?
3) What order?
10. On going through the records, documentary
evidence and by hearing the arguments of both sides I
proceed to answer the above points in both the cases as
follows:
Point No 1 : In the affirmative.
Point No.2 : In the affirmative.
Point No.3 : As per the final order, for the following:
REASONS
11. POINT No.1 (in both the cases): The complainant
claims that the accused in both the cases are well known to
him for quite long time and they are the father and son in
relationship and they used to work under him by marketing
his agarbathi products. With that acquaintance the accused
in CC.No.22130/10 borrowed hand loan of Rs.6,50,000/- on
14.10.2009 to perform the marriage of his son by agreeing to
repay the said loan in January 2010 by selling his property at
Sangli. The complainant also claims that the accused in
CC.No.22132/10 borrowed hand loan of Rs.1,22,000/- for his
business purpose.
21st ACMM
C.C.No.22130/10
7 & C.C.No.22132/10
12. For discharging the said debt, the complainant
claims that the accused in CC.No.22130/10 has issued a
Cheque Bearing No.089664 Dated 29.03.2010 for a sum of
Rs.6,50,000/- drawn on ICICI Bank Ltd., Sangli Branch,
Sangli and the accused in CC.No.22132/10 has issued a
Cheque Bearing No.155462 Dated 14.03.2010 for a sum of
Rs.1,22,000/- drawn on Vijaya Bank, Maruthi Road Branch,
Sangli, for discharging their dues.
13. When the said 2 cheques were presented for
encashment, the same were dishonoured with bank
endorsement as "Payment Stopped by Drawer" in
CC.No.22130/10 and as "Funds Insufficient" in
CC.No.22132/10. The dishonour of the cheques was
intimated to the accused in both the cases separately through
the legal notice and the notices were duly served on the
accused. The accused in both cases submitted their
untenable reply and failed to pay the cheque amount within
the stipulated period.
14. In support of his cases the complainant got
examined himself as PW.1 in both the cases separately and
got marked Ex.P1 to Ex.P9 in CC.No.22130/10 and Ex.P1 to
Ex.P10 in CC.No.22132/10. Among them, Ex.P1 is the
cheque in both the cases and Ex.P2 is the endorsement in
both the cases issued by the banking authorities by assigning
reasons for dishonour of cheque Ex.P1 as "Payment stopped
by the Drawer" in CC.No.22130/10 and as "Funds
8
Insufficient" in CC.No.22132/10. The contents of the bank
endorsement remain undisputed. Hence, I proceed to hold
that the complainant by placing bank endorsements Ex.P2
along with the cheques Ex.P1 in both the cases proved that
the said cheques have been dishonoured by the banking
authorities.
15. The complainant claims that the accused was
known to him from the past several years. The accused in
both the cases got examined themselves as defence witness.
The accused in both cases were examined as DW.1 and DW.2
in CC.No.22130/10 and the accused in CC.No.22132/10 got
examined himself as DW.1. The evidence of the accused
persons in both cases if appreciated in totality, it leads to the
inference that the accused persons by pleading ignorance
about the complainant, stated that the complainant in his
case is one Rajesh and not Raghava Rao. The accused
persons also got marked Ex.D5 and Ex.D6 in
CC.No.22130/10 in support of their defence. The certified
copies of Ex.D3 to Ex.D6 in CC.No.22130/10 have been
marked as Ex.D4 to Ex.D7 in CC.No.22132/10. The said
documents shows that they are the documents related to one
Sri Rajesh. The complainant who got examined himself as
PW.1, in his cross examination dated 20.12.2012 at page no.6
in the last few lines claims that he introduced himself as
Raghava Rao before the accused persons and his school
records bears his name as Rajesh. The complainant in his
further cross examination dated 09.06.2014 at page no.8
21st ACMM
C.C.No.22130/10
9 & C.C.No.22132/10
claims that he is identified by the names Rajesh and Raghava
Rao and also admits that he has got no documents to show
that he is Rajesh @ Raghava Rao. Ex.P9 is the reply notice
given by the accused in CC.No.22130/10. It is not in dispute
that the accused in CC.No.22130/10 is the father of the
accused in CC.No.22132/10. In the Ex.P9 the accused Jyothi
Prakash Shetty in CC.No.22130/10 has identified the
complainant as Raghava Rao who is also known as Rajesh.
The content of Ex.P9 shows that the accused persons are
aware of the fact that the complainant has got two names Sri
K. Raghava Rao and Rajesh. The contents of Ex.P9 regarding
the identification of the complainant corroborates with the
contention of the complainant that he has got two names
such as K. Raghava Rao and Rajesh. In Ex.D14 also the
complainant is identified as K. Raghava Rao @ Rajesh. Hence
the contention of the accused in both cases that they do not
know K. Raghava Rao and the complainant is one Rajesh
cannot be accepted. By relying upon Ex.P9 and Ex.P14, I
proceed to hold that the complainant has got two names K.
Raghava Rao and Rajesh.
16. The accused in both the cases admits that the
Ex.P1 cheque in both cases belongs to them and they bear
their signature as Ex.P1(a). When the accused in both the
cases admits that the cheque Ex.P1 belongs to them and they
bear their signature, there exists statutory presumption u/s
118 and 139 of NI Act. The accused shall place rebuttal
10
evidence to rebut the presumption that exists in favour of
Ex.P1 in both the cases.
17. The accused in both cases have taken up the
defence of misuse of their cheques and also taken up the
defence that the complainant has stolen the cheque belongs
to them for the purpose of filing false complaint. The accused
in both the cases relied upon Ex.D9 copy of complaint lodged
before Sangli City Police, its English Translation Ex.D10,
endorsement issued by the Sangli City Police as Ex.D11, its
English Translation Ex.D12, intimation given to the police as
Ex.D13 and its English Translation as Ex.D14 to substantiate
their contention of misuse of their cheques and stolen of
cheques in CC. No.22130/10.
18. The Ex.D9 in CC. No.22130/10 is the copy of the
complaint allegedly lodged before Sangli City Police. The
accused has not produced the FIR to show that the complaint
lodged by him as per Ex.D9 has been registered by the police.
The accused also not assigned any satisfactory explanation as
to why he has failed to produce the copy of FIR if his
complaint Ex.D9 has been registered by the jurisdictional
police. The complainant claims that the accused persons
have created the documents Ex.D9 for the purpose of this
case. Inspite of the specific defence taken up by the
complainant regarding the Ex.D9, the accused in both the
cases have not taken steps to prove that the complaint Ex.D9
has been registered and FIR has been sent to the court.
21st ACMM
C.C.No.22130/10
11 & C.C.No.22132/10
19. Further in the Ex.D10 which is the English
Translation of Ex.D9, the accused in CC.No.22130/10 has
lodged the complaint on 19.02.2010 claiming that the cheque
Ex.P1 in CC.No.22130/10 was dropped at Badam Chowk,
Sangli Area. But in Ex.D12 the police issued the certificate
regarding the registration of missing complaint on the basis of
Ex.D9. But it is not forthcoming whether the crime case is
registered or c.mis case is registered on the basis of Ex.D9.
the contents of Ex.D14 shows that the accused in
CC.No.22130/10 has informed the police that the
complainant has filed this complaint against him before the
15th ACMM, Bangalore by identifying the complainant as K.
Raghava Rao who is also known as Rajesh. The accused not
only in Ex.P9 but also in Ex.D14 identified the complainant
as K. Raghava Rao @ Rajesh. Even though the accused has
informed the police that the complainant is in possession of
the cheque Ex.P1, referred in Ex.D8 and Ex.D10, the accused
has not placed any documents to show the further
proceedings or enquiry held by the police in connection with
his complaint Ex.D9.
20. Further the accused has taken up the defence that
the complainant has stolen his cheque. But the accused has
not lodged the complaint regarding the stolen of cheque in
Ex.D9 and Ex.D10. Even in the Ex.D13 and Ex.D14 also the
accused has not disclosed that the cheque Ex.P1 was stolen
from his possession without his knowledge and consent. In
12
the Ex.D9 to Ex.D14, the accused has taken up the defence of
missing of cheque. Nothing prevented the accused to lodge
the complaint alleging that the cheque Ex.P1 has been stolen
from his possession. The accused also not produced the copy
of stop payment intimation given to the banking authorities
regarding the Ex.P1. The complainant has taken up the
defence that the documents at Ex.D8 to Ex.D12 are created
for the purpose of this case. In the Ex.P2, the cheque Ex.P1
in CC.No.22130/10 has been dishonoured by assigning
reasons as "Payment Stopped by Drawer". The reasons
assigned by the accused at the time of giving intimation to the
banking authorities to stop payment regarding the cheque
Ex.P1 becomes relevant point for consideration. When the
accused has taken up the specific defence of stolen of cheque,
the accused shall substantiate the same. Even though
through the Ex.D8 to Ex.D14 it appears that the accused has
initiated legal action for missing of cheque Ex.P1 in
CC.No.22130/10, he has not produced any other documents
for having proceeded further on the basis of the legal action
initiated by him. When the accused has failed to produce the
copy of FIR regarding the registration of case on the basis of
complaint lodged by him regarding the missing of cheque, the
documents relied upon by the accused cannot be solely taken
into consideration to hold that the accused has initiated the
legal action for the missing of cheque.
21. The Ex.D1 to Ex.D3 in CC.No.22130/10 are the
documents relied upon by the accused to prove the terms and
21st ACMM
C.C.No.22130/10
13 & C.C.No.22132/10
conditions of business transaction with the complainant. The
Ex.D1 bears the terms and conditions in serial no.1 to 7. The
condition no.7 in Ex.D1 has been written in the pen where as
the conditions at no.1 to 6 are in carbon copy. The accused
has not offered any satisfactory explanation for such writings
in the pen. But Ex.D1 in CC.No.22130/10 has been
confronted during the cross examination of the complainant.
When the complainant himself admitted the document
marked as Ex.D1, I find no reason to disbelieve the contents
of the said document.
22. The fact that the accused in both the cases have
transacted with the complainant during the course of their
business transaction is not in dispute. It is also not in
dispute that the complainant used to supply incense sticks to
the accused persons and in turn used to sell the same and
remit the price of the incense sticks to the bank account of
the complainant. The DW.1 in CC.No.22130/10, in his
examination in chief itself stated that he along with his two
children joined the complainant and the complainant was
their employer and they were the employees in the business
transaction. In CC.No.22130/10, the complainant claims
that the accused borrowed loan of Rs.6,50,000/- lakhs to
perform the marriage of his son and also claims that he lend
the loan in favour of the accused by considering that the
accused was his employee. The accused denied the same
claiming that his stolen cheque has been misused by the
complainant for the purpose of filing this false complaint.
14
The accused claims that the complainant had business talks
with them during June 2009 and they started their incense
sticks business from the first of July 2009. The accused also
claims that they have entered into unregistered written
agreement as per Ex.D1. Ex.D1 is the terms and conditions
of business transaction, confronted during the cross
examination of the complainant and the said document bears
the date of execution of the said document as 28.08.2009.
The DW.1 in CC.No.22130/10 claims that they have stopped
their business transaction during August 2009. The Ex.D1
came to be executed on 28.08.2009 and the accused claims
that they have stopped their business transaction with the
complainant during August 2009. If the accused has stopped
his business transaction to complainant during 2009, why
Ex.D1 dated 28.08.2009 came to be executed between them
during the fag end of August 2009 has not been explained by
the accused.
23. Ex.D1 is the document produced by the accused in
CC.No.22130/10 to prove the terms and conditions of the
business transaction. The DW.2 in CC.No.22130/10 also
claims that after selling the incense sticks, they used to remit
the sale proceeds to the bank account of the complainant and
his father has sold the incense sticks till August 2009 and
there after his father undergone surgery and he was on bed
rest as per the doctor's advice. The Ex.D7 is the discharge
summary relied upon by the accused in CC.No.22130/10 to
show that he was not keeping well and he stopped his
21st ACMM
C.C.No.22130/10
15 & C.C.No.22132/10
business transaction during August 2009 due to ill health.
As per the Ex.D7 discharge summary, date of admission of
the accused in CC.No.22130/10 for treatment is 22.08.2009.
Ex.D1 is the document executed on 28.08.2009. When the
accused in CC.No.22130/10 by relying upon Ex.D1 claims
that the said document was executed on 28.08.2009, it shows
that the discharge summary marked as Ex.D7 is prior to the
date of the execution of the Ex.D1. When the Ex.D1 came to
be executed subsequent to the hospitalization of accused in
CC.No.22130/10, the contention of the accused that he
stopped his business transaction in August 2009, due to ill
health cannot be accepted. By relying upon Ex.D7 and
Ex.D1, I proceed to hold that the accused in CC.No.22130/10
was under treatment even prior to the execution of Ex.D1.
24. The evidence of DW.1 and DW.2, if appreciated in
totality it shows that the accused in both cases used to remit
the sale proceeds to the bank account particulars furnished
by the complainant. By considering the evidence of DW.1 and
DW.2 in CC.No.22130/10, it can be clearly inferred that there
was business transaction even prior to the execution of
Ex.D1. Otherwise if the business transaction between the
complainant and the accused is subsequent to the execution
of Ex.D1, they had no occasion to remit the sale proceeds to
the bank account of the complainant, as claimed by
DW.1/DW.2 in this case. Since there was business
transaction between the complainant and the accused even
prior to the execution of Ex.D1, they had an occasion to remit
16
the sale proceeds of the bank account of the complainant.
But the DW.1 and DW.2 in CC.No.22130/10 claims that they
have stopped their business transaction during August 2009
due to ill health of the DW.1. If that is the case, they had no
reason to execute the document Ex.D1 on 28.08.2009, since
the DW.1 in CC.No.22130/10 was already under treatment
from 22.08.2009 as per the Ex.D7.
25. The DW.1 in CC.No.22130/10 claims that since
2009 they have not transacted with the complainant and they
have informed the complainant about the same. But the
complainant has failed to respond them. Hence claims that
they have written a letter in 2010 calling upon the
complainant to take back his materials as they are going to be
deteriorated. Thus at one stretch the accused claims that
they have stopped their business transaction with the
complainant in 2009 by informing him about the same and
there after since the complainant has failed to respond, they
have addressed a letter to the complainant in 2010 calling
upon him to take back his materials. The accused in
CC.No.22130/10 also claims that he has issued 3 cheques
out of which 2 cheques for Rs.50,000/- each and one cheque
for Rs.41,000/- on 06.02.2010 and 07.02.2010. The DW.1 in
CC.No.22130/10, also claims that the accused in
CC.No.22132/10 has issued a cheque for Rs.1,22,000/- in
favour of the complainant and inspite of it the complainant
has failed to return their two cheques. The DW.1 in
CC.No.22130/10 further claims that they have given stop
21st ACMM
C.C.No.22130/10
17 & C.C.No.22132/10
payment intimation to the banking authorities. Thus at one
stretch the accused claims that the complainant has misused
their cheques by stealing them from their possession. At
another stretch the accused claims that the complainant has
failed to return their two cheques. None of the cheques
produced before the court are drawn for Rs.50,000/- or for
Rs.41,000/-. It is not the case of the said accused that he
issued blank signed cheque. Then the accused shall prove
the misuse of cheques. Thus the defence taken up by the
accused contradicts.
26. The accused in CC.No.22130/10 also relied upon
Ex.D4 to show that the complainant visited Sangli on
19.02.2010. Merely for the reason that the complainant
visited Sangli on 19.02.2010, it cannot be said that the
complainant has stolen the cheque of the accused, unless it is
proved. As discussed in previous paragraphs, the accused
has not produced FIR or other relevant documents to show
that he initiated legal action against the complainant for theft
of his cheque. The complainant got marked Ex.D8 to Ex.D14
to show that he initiated legal action for the misuse of his
cheque. But the accused has failed to produce the
documents for having initiated the legal action against the
complainant after coming to know that the complainant is in
possession of their missing cheque. The accused/DW.1 in
CC.No.22130/10 claims that he came to know about the fact
that the complainant is in possession of his lost cheque on
receiving the demand notice. But the accused has failed to
18
give satisfactory explanation as to the legal action initiated by
him on coming to know that the complainant is in possession
of his stolen cheque.
27. The accused in CC.No.22130/10 claims that he has
issued blank signed cheque in favour of his son to meet the
business requirements since he was under treatment. The
DW.1 in CC.No.22130/10 claims that the complainant has
made use of his two wheeler vehicle for his requirement in
which he had kept his father's blank signed cheque and after
that he came to know about the missing of the signed cheque
of his father. The accused in CC.No.22130/10 claims that in
this regard they lodged the complaint as per Ex.D9 on
19.02.2010. But the accused has not narrated the
circumstances in which he lost his cheque in the Ex.D9 and
Ex.D10. The content of Ex.D10 does not disclose the fact
that the accused lost the cheque kept in his two wheeler
vehicle. In the Ex.D10 the accused lodged the complaint
stating that his signed Cheque No.089664 has been dropped
by him. Thus the contents of Ex.D10 differ from the evidence
of DW.1 and DW.2 in CC.No.22130/10 regarding the
circumstances in which the cheque came to be misplaced.
But in the Ex.P9 reply notice dated 24.04.2010, the accused
came up with the defence of stolen of cheque from his vehicle.
In the Ex.D9 to Ex.D14, the accused has not stated anything
about how and when his cheque came to be misplaced. Only
in Ex.P9, the accused came up with a specific defence of theft
of his cheque. It is the settled position of law that the mere
21st ACMM
C.C.No.22130/10
19 & C.C.No.22132/10
plausible explanation is not sufficient to rebut the
presumption unless it is proved. The contents of Ex.P3 and
Ex.P9 shows that the complainant and accused had talks
with each other subsequent to the dishonour of cheque in
CC.No.22130/10.
28. During the cross examination of the complainant
dated 09.06.2014 in CC.No.22130/10 it was suggested that
the document marked as Ex.P10 in CC.No.22132/10 is the
letter written by the DW.2 in CC.No.22130/10. The
complainant claims that the accused in CC.No.22132/10 has
issued the cheque Ex.P1 for the repayment of the loan
borrowed by him. Ex.P10 in CC.No.22132/10 is the
document relied upon by the complainant to prove the
issuance of the cheque Ex.P1 in his favour towards the dues
and Ex.P9 is the reply given by the accused on receiving the
demand notice. Through the Ex.P9 in CC.No.22132/10, the
accused contended that the cheque Ex.P1 has been issued
towards the settlement of the account and as per the terms of
settlement, the complainant was bound to return the
Cheques Bearing No.89661 and 89662. Since the
complainant has failed to return those two cheques, they
have issued stop payment intimation to the banking
authorities. The accused in CC.No.22132/10 has not
produced any documents to show that he had sufficient
balance in his bank account as on the date of the cheque.
The accused in CC.No.22132/10 clearly admits his dues
towards the complainant to the extent of cheque amount of
20
Rs.1,22,000/- marked as Ex.P1 in CC.No.22132/10. When
the accused admits his dues towards the complainant to the
extent of cheque amount, the accused shall place evidence to
show that he had sufficient bank balance as on the date of
the cheque and he issued stop payment intimation to avoid
payment or honouring of cheque in the circumstances
explained by him. When the accused has failed to prove that
he had sufficient bank balance in his account on the date of
the cheque, it attracts and fulfils the ingredients of Sec 138 of
NI Act to constitute an offence as required under the said
provision. The suggestion in form of admission made during
the cross examination of complainant in CC.No.22130/10
regarding Ex.P10, also leads to conclusion that the accused
in CC.No.22132/10 has issued the cheque Ex.P1 therein for
discharging the dues and it came to be dishonoured on its
presentation for encashment.
29. In the absence of any rebuttal evidence, in view of
the statutory presumption U/s.139 of NI Act that exists in
favour of the cheques and for the reasons discussed in
previous paragraphs, I find no reason to disbelieve the
contention of the complainant. Hence I proceed to answer
Point No.1 in affirmative in all the cases.
30. Point No.2 (in both the cases): The complainant
claims that the accused committed an offence punishable
U/s.138 of NI Act stating that the cheque Ex.P1 and
endorsement Ex.P2 in both the cases are issued by the
21st ACMM
C.C.No.22130/10
21 & C.C.No.22132/10
accused to discharge his dues have been dishonoured by the
banking authorities. On receiving the said intimation from
the banking authorities, got issued legal notice marked as per
Ex.P3 in both the cases and they have been duly served on
the accused, and the accused replied the demand notice as
per Ex.P9 in both the cases.
31. The complainant by placing Ex.P1 to Ex.P10 in
CC.No.22132/10 and Ex.P1 to Ex.P9 in CC.No.22130/10
proved and established that the cheques in both the cases
have been dishonoured by the banking authorities and it has
been intimated to the accused in both the cases through the
legal notice and demanded for the payment of the cheques
amount. For the reasons discussed in previous paragraphs,
I proceed to hold that the accused in both the cases has failed
to make payment of the cheque amount within the statutory
period and thereby committed an offence punishable U/s.138
of NI Act. Hence I proceed to answer Point No.2 in the
affirmative in all the cases.
32. POINT No.3 (in both the cases): To this point, I
made the following:
ORDER
The accused in CC.No.22130/10 and CC.No.22132/10 is convicted U/Sec.255 (2) of Cr.P.C for the offence punishable U/Sec 138 of N.I. Act.
22The accused in CC.No.22130/10 is sentenced to pay fine amount of Rs.6,60,000/- (Rupees Six Lakh Sixty Thousand only). In default to undergo simple imprisonment for a period of twenty months.
Out of the total fine amount of Rs.6,60,000/- a sum of Rs.6,50,000/- is ordered to be paid to the complainant by way of compensation U/Sec.357 of Cr.P.C., and the balance amount of Rs.10,000/- shall be remitted to the State.
The accused in CC.No.22132/10 is sentenced to pay fine amount of Rs.1,32,000/- (Rupees One Lakh Thirty two Thousand only). In default to undergo simple imprisonment for a period of ten months.
Out of the total fine amount of Rs.1,32,000/- a sum of Rs.1,22,000/- is ordered to be paid to the complainant by way of compensation U/Sec.357 of Cr.P.C., and the balance amount of Rs.10,000/- shall be remitted to the State.
The bail bond of the accused stands cancelled in both the cases.
(Original judgment is kept in CC.No.22130/10. It is ordered to keep the copy of the judgment in CC.Nos.22132/10) (Dictated to the typist directly on computer, typed by her, corrected and then pronounced by me in open court on this the 10th day of August, 2015) (B.SHARADHA) XXI ADDL. C.M.M., BANGALORE.
21st ACMM C.C.No.22130/10 23 & C.C.No.22132/10 ANNEXURE WITNESSES EXAMINED FOR THE COMPLAINANT:
(In both the cases) PW.1 : Sri K. Raghava Rao DOCUMENTS MARKED FOR THE COMPLAINANT:
CC.No.22130/10 Ex.P1 : Cheque Ex.P1(a) : Signature of Accused Ex.P2 : Bank Endorsement Ex.P3 : Copy of legal notice Ex.P4 & P5: Postal Receipt Ex.P6 : UCP Endorsement Ex.P7 & P8: Postal Acknowledgment Ex.P9 : Reply Notice of Accused CC.No.22132/10 Ex.P1 : Cheque Ex.P1(a) : Signature of Accused Ex.P2 : Bank Endorsement Ex.P3 : Copy of legal notice Ex.P4 & P5: Postal Receipt Ex.P6 : UCP Endorsement Ex.P7 & P8: Postal Acknowledgment Ex.P9 : Reply Notice of Accused Ex.P10 : Payment Receipt WITNESSES EXAMINED FOR THE DEFENCE:
CC.No.22130/10 DW.1 : Sri B.K. Jyothi Prakash Shetty DW.2 : Sri B.J. Kiran Kumar CC.No.22132/10 DW.1 : Sri B.J. Kiran Kumar 24 DOCUMENTS MARKED FOR THE DEFENCE:
CC.No.22130/10
Ex.D1 & D2: Agreement
Ex.D3 : Charge handing over list
Ex.D4 : Lodge Receipt
Ex.D5 : Letter dated 26.01.2010 written to the
complainant
Ex.D6 : Visiting Card
Ex.D7 : Discharge Summary
Ex.D8 : Intimation Letter
Ex.D9 : Complaint
Ex.D10 : English Translation of Ex.D9
Ex.D11 : Acknowledgement given by Sangli
Police
Ex.D12 : English Translation of Ex.D11
Ex.D13 : Intimation Letter Given for Sangli
Police
Ex.D14 : English Translation of Ex.D13
CC.No.22132/10
Ex.D1 : Ledger Account Extract
Ex.D2 & D3: Certified copy of Agreement Ex.D4 : Certified copy of Charge handing over list Ex.D5 : Certified copy of Lodge Receipt Ex.D6 : Certified copy of Letter dated 26.01.2010 written to the complainant Ex.D7 : Certified copy of Visiting Card FB/* XXI ADDL. C.M.M., BANGALORE.