Bangalore District Court
Mohan.B vs M/S. Sammilana Chits Pvt. Ltd on 10 February, 2020
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 10th day of February - 2020
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.9976/2018
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Mohan.B,
S/o.Bramhachar,
Aged about 42 years,
R/o Doddahosahalli,
Bettakote Post, Devanahalli,
Bengaluru Rural District.
(Rep. by Sri.M.Rajagopal, Adv.)
V/S
Accused : 1. M/s. Sammilana Chits Pvt. Ltd.,
Annanamane,
No.50A, 37th Cross, 28th Main,
9th Block, Jayanagar,
Bengaluru-69.
Rep. by its Managing Director,
C.Suresh.
2. C.Suresh,
Aged about 45 years,
Managing Director
Annanamane,
No.50A, 37th Cross, 28th Main,
9th Block, Jayanagar,
Bengaluru-69.
(Rep.by Sri.K.B.Naveen Kumar, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
Judgment 2 C.C.No.9976/2018
FINAL ORDER : Accused Nos.1 and 2 are
Convicted
DATE OF ORDER : 10.02.2020.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
JUDGMENT
The complainant has presented the instant complaint against the accused Nos.1 and 2 on 27.03.2018 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheque of Rs.1 lakh.
2. The facts raised by the complainant in the complaint in brief is as follows:
The complainant has contended that, he is a School Teacher in private middle school viz., Holy Angel School, RPC Layout, Bengaluru, since 9 years, he was working in the said school as drawing teacher.
The complainant has further alleged that, the accused No.1 firm is M/s. Sammilana Chits Pvt. Ltd., is the registered firm and accused No.2 is the Managing Director. The accused No.2 is looking after the affairs of accused No.1 including day to day transaction of the chit fund. Apart from the signing authority, he Judgment 3 C.C.No.9976/2018 also used to collect the subscription amount from the members and making payment after completion of the chit period. Accused No.2 conduct the chit business by way of forming groups of subscribers fixed the period of amount and he is responsible for all the transaction of chit fund.
The complainant has further contended that, accused No.2 since last several years conducted the chit fund business. The complainant through a common friend got introduced to accused No.2. On the representation of the 2nd accused and certain assurance of the benefits etc., made to the complainant to subscribe, as a member in the chit run by the 2nd accused in the name of accused No.1. The complainant subscribed as a member to the said chit in the year 2014 for the value of Rs.1,25,000/- and monthly premium was Rs.5,000/-. The complainant had become a member of the said chit in that group chit reference No.BJW066G1/12 commencing from 21.05.2014 approximately ended in the month of April, 2016. Likewise, complainant also subscribed another chit for the value of Rs.2,50,000/-, commencing from 21.09.2013 and ending on 24.08.2015. However, the complainant pertains to the said chit value of Rs.1,25,000/- only and the complainant has intimated, Judgment 4 C.C.No.9976/2018 and separate case initiated for Rs.2,50,000/-, consequent issuing the cheque by the accused No.2.
The complainant has further averred that, after subscribing the chit value of Rs.1,25,000/-, the complainant remitted the prescribed monthly subscription amount till 25.11.2015. After close the said group and 2nd accused has due sum of Rs.1,25,000/- to the complainant in all in the said transaction. The accused have issued 18 receipts for having received the monthly subscription amount, after showing concessions of dividend amount, which amount varied every month depending upon the bid. Accordingly, as demanded by the 2nd accused, such amount has been remitted by the complainant. The 2nd accused singed all the receipts. The accused are liable to pay the amount after completion of the chit and to discharge of pay Rs.1,25,000/-, the accused No.2 on the repeated visits and constant efforts of the complainant got issued a cheque bearing No.494248 dated:20.12.2017 for sum of Rs.1,00,000/- drawn on Syndicate Bank, Tilaknagar Branch on or about in the last week of November, 2017 as part payment, with assurance to honour the same and had assured to repay the balance amount in a short period. When the complainant has presented the said cheque for encashment through his banker viz., State Bank of India, RPC Judgment 5 C.C.No.9976/2018 Layout branch, Vijayanagar, Bengaluru dated:18.01.2018, the said cheque came to be dishonoured for the reasons "Funds Insufficient" as per endorsement dated:20.01.2018. When complainant intimated about the said fact, the accused No.2 has not respond. Hence, he gave legal notice to the accused through his counsel by R.P.A.D on 12.02.2018 and the same were served on accused on 13.02.2018. In the reply given by the accused, it has specifically stated that, instead of adopting legal course, the issue may be amicably settled between the parties. After sincere efforts made by the complainant, it was not fruitful. Thereby, the accused Nos.1 and 2 committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
3. After receipt of the private complaint, this court took the cognizance and got registered the PCR and recorded the sworn statement. Since made out prima-facie grounds to proceed against the accused Nos.1 and 2 for the alleged offence, got issued process.
4. In response to the summons, the accused appeared through their counsel and obtained the bail. As required, complaint copy was supplied to the accused. Thereafter, Judgment 6 C.C.No.9976/2018 accusation was read over and explained to them, wherein, they denied the same and claimed to have the defence.
5. To prove the case of the complainant, he himself choosen to examined as PW.1 and got marked Exs.P1 to P31(a). The PW.1 was subjected for cross-examination by the advocate for the accused. In the cross-examination of DW.1, complainant counsel got confronted the documents at Exs.P32 to P40.
6. Thereafter, incriminating evidence made against the accused Nos.1 and 2 was recorded under Section 313 of Cr.P.C, wherein the accused denied the same and the answer given by them were recorded. In support of the defence, the accused No.2 on behalf of accused No.1; himself was examined as DW.1 and got marked Exs.D1 to D9 and also subjected for cross- examination by the advocate for the complainant.
7. I have heard the arguments of both side counsels.
8. On going through the rival contentions, based on the substantial evidence available on record, the following points have been arising for determination:
1) Whether the complainant proves beyond the reasonable doubt that, the amount made mentioned in Ex.P1 cheque for sum of Rs.1,00,000/- is the legally existing debt payable by the accused Nos.1 and 2 to the complainant?
Judgment 7 C.C.No.9976/2018
2) Whether the complainant proves the guilt of the accused Nos.1 and 2 for the offence punishable under Section 138 of Negotiable Instruments Act?
3) What Order?
9. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the partly Affirmative Point No.2 : In the Affirmative Point No.3 : As per final order, for the following:
REASONS
10. POINT NOs.1 and 2: Since both the points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.
The PW.1 to prove his case choosen to examined himself and filed affidavit by reiterating the complaint averments in toto, and produced the documents at Exs.P1 to P40, they are:
a) Ex.P1 is the cheque bearing No.494248 issued by the accused Nos.1 and 2 for sum of Rs.1,00,000/-
dated:20.12.2017, drawn on Syndicate Bank, Tilaknagar, Bengaluru.
b) Ex.P1(a) is the alleged signature of accused No.2.
c) Ex.P2 is the Bank Memo dated:20.01.2018.
d) Exs.P3 and P4 are the Legal Notices dated:
12.02.2018
e) Exs.P5 and P6 are the Postal receipts.
Judgment 8 C.C.No.9976/2018
f) Exs.P7 and P8 are the Postal Acknowledgment Cards.
g) Exs.P9 and P10 are the letters dated:28.02.2018 written by accused No.2 to one Rajagopal.M.
h) Exs.P11 and P12 are the R.P.A.D covers.
i) Exs.P13 to P30 are the cash paid receipts issued by the accused No.1 firm in favour of complainant.
j) Ex.P31 is the private complaint and
k) Ex.P31(a) is the signature of complainant and
l) Exs.P32 to P40 are the Xerox copies of temporary receipt and receipts issued by accused No.1 firm to the complainant.
The PW.1 was subjected to the cross-examination by the advocate for the accused. In support of his case the complainant through his counsel has produced the citations and relied upon same, they are;
a) (2018) 8 SCC 469
b) AIR 2019 SC 2446
c) AIR 2019 SC 2456
11. In order to prove the defence of the accused, the accused No.2 as well as on behalf of accused No.1, himself was examined as DW.1 and produced the documents at Exs.D1 to D9. They are:
a) Ex.D1 is the letter dated:28.02.2018 written by accused No.2 to one Rajagopal.M.
b) Ex.D2 is the postal receipt.
Judgment 9 C.C.No.9976/2018
c) Ex.D3 is the GMS Courier receipt.
d) Ex.D4 is the Postal Acknowledgment Card.
e) Ex.D5 is the application form for enrollment pertaining to accused No.1 issued in favour of complainant.
f) Ex.D5(a) is the signature of complainant.
g) Ex.D6 is the Agreement of chit pertaining to accused No.1 issued in favour of complainant. .
h) Ex.D6(a) is the signature of complainant.
i) Ex.D7 is the chit bid slab pertaining to the accused No.1.
j) Ex.D8 is the Payment and Deduction details of the chit account and
k) Ex.D9 is the copy of Chit ledger extract pertaining to the accused No.1 firm.
The DW.1 was subjected to the cross-examination by the advocate for the complainant.
12. While appreciate the materials on records and evidence, this court has gone through the decisions stated supra apart from the other decisions.
13. After cross-examination of PW.1, the incriminating evidence made against the accused Nos.1 and 2 were read over and explained to them as required under Section 313 of Cr.P.C., wherein the accused No.2 on behalf of accused No.1, himself has denied the incriminating evidence made against them, but admitted the receipt of legal notice. In order to prove their Judgment 10 C.C.No.9976/2018 probable defence, the accused No.2 choosen to entered into the witness box by filing affidavit evidence and examined on oath as DW.1. Since, the complainant has not opposed the affidavit evidence of the accused No.2, the same was taken on record.
14. In the affidavit evidence, the accused No.2 stated that, he being the Managing Director of accused No.1 Company has stated that, it is the registered company and having legal entity under the Chit Fund Act and Chit Fund Rules. The accused No.2 has contended that, complainant is a chit subscriber with accused No.1 for sum of Rs.1,25,000/- (25 months/members and monthly subscription of Rs.5,000/-) in chit group and took No.BJW066G/01 opened on 30.05.2014. Due to unavoidable circumstances, the said chit group has been stopped and same has been informed to the complainant and totally amount paid by the complainant towards chit was Rs.77,460/- for the chit payment of 18 months as evident from the receipt produced by the complainant at Exs.P13 to P30. Hence, complainant agreed to cancel the said chit and received balance amount from the accused No.2 and requested for time for repay the said amount and issued 2 cheques i.e., Ex.P1 for security including another chit group in the year 2015, in that regard, the complainant has filed C.C.No.10762/2018. The Judgment 11 C.C.No.9976/2018 said cheques were not issued on 20.12.2017 as alleged by the complainant.
15. The accused has further alleged that, the accused No.2 has paid sum of Rs.57,500/- on 01.12.2015, Rs.30,000/- on 30.12.2015 and Rs.25,000/- on 24.02.2017, totally sum of Rs.1,12,500/-by way of NEFT and other mode. The complainant has received the said amount through cash and executed receipt for the same and the entire amount were paid by the accused No.2 as per Ex.D7. The complainant has not stated the said fact. The accused No.2 has replied the legal notice, wherein also he gave suppressing facts and earlier payment made by the accused. Even, the accused has called clarification by way of issuing notice to the same; the complainant has not issued any rejoinder or reply. In his cross-examination he admitted, the payment made by the accused No.2 to him. Hence, he is not liable to pay any money. The complainant is not deducted the foremen commission of Rs.17,860/- at the rate of 5% as per the agreement, the same also been admitted by the complainant in his cross-examination. Without any information to the accused, the complainant has presented the said cheque for encashment, which was taken by him as security for repayment. The amount Judgment 12 C.C.No.9976/2018 covered under the cheque is not payable by the accused Nos.1 and 2. The DW.1 was subjected for cross-examination.
16. On going through the rival contentions of the parties, the complainant joined the chit as alleged in the complaint with the accused Nos.1 and 2 is not in dispute. The chit amount, rules and regulations as narrated under Ex.D6 agreement of chit entered in to between complainant and accused is not in dispute. The fact that, as per the conditions only chit has to be run by the accused is been admitted. As per the said agreement, 5% of chit value shall be payable by the complainant as foremen charges is also not been disputed. The fact that, the total amount paid by the complainant to the accused as found in Ex.D7 of Rs.74,140/- is not in dispute. The fact that, as calculated by the accused Nos.1 and 2 as found in Ex.D8, the total subscription amount was Rs.95,000/-, less dividend of Rs.17,860/- debited is also not in dispute. The fact that, to the said amount foremen commission was Rs.6,250/- and balance payable by the accused No.2 on behalf of accused No.1 to the complainant was at Rs.70,890/- is also not in dispute. The accused took the contention that, he paid the amount covered under the present chit of Rs.70,890/-. In that regard, as found from the document at Exs.D1 to D9, no materials is been placed. It discloses that, on regard to show that, the Judgment 13 C.C.No.9976/2018 accused No.2 got paid sum of Rs.70,890/- to the complainant, no document is been placed. Therefore, it requires to focus on the evidence of DW.1, as he himself run the chit.
17. In the affidavit evidence the DW.1 has deposed that, the accused No.2 had paid sum of Rs.57,500/- on 01.12.2015, sum of Rs.30,000/- on 30.12.2015 and sum of Rs.25,000/- on 24.02.2016 and in all paid sum of Rs.1,12,500/- to the complainant by way of NEFT and other mode. The said receipt of money in connected to the another case in C.C.No.10762/2018 against the chit amount of Rs.2,50,000/- is not in dispute. The Ex.D7 document has produced not in the present case, but in the said case, the said payment cannot be accepted to the present, as altogether both chit transactions are different. To show that, the accused had paid any money in connection to the present case by way of cash and executed receipt in regard to acceptance of entire chit amount connection to the present, as alleged by the accused, admittedly, he not produced any such receipt for passing of consideration either Rs.1 lakh or Rs.70,890/- to the complainant. In the cross- examination of DW.1, he not taken any such contention, as to the payment of chit money involved in the present case. Therefore, his defence placed by way of cross-examining the PW.1 is to be seen.
Judgment 14 C.C.No.9976/2018
18. The complainant by way of producing his oral as well as documentary evidence failed to rebut the statutory presumption as well as factual circumstances put forth by the complainant. Therefore, the defence taken by the accused while cross- examining the PW.1 is to be seen. It is relevant to re-produce the evidence of PW.1, which reveals the case of the complainant and defence of the accused, the relevant portion of cross-examination of PW.1 is runs thus:
"¹¹.£ÀA.9976/18 gÀ°è ºÁdgÀÄ¥Àr¹zÀ ZÉPï gÀÆ.1,25,000/- aÃnUÉ ¸ÀA§AzÀs¥ÀlÖ ¥ÀæPÀgÀtªÁVzÉ. D ¥ÉÊQ D aÃnAiÀÄ°è £Á£ÀÄ ¸ÀĪÀiÁgÀÄ gÀÆ.1 ®PÀë ¥ÁªÀw ªÀiÁrgÀ§ºÀÄzÀÄ. £Á£ÀÄ 19 aÃnAiÀÄ PÀAvÀ£ÀÄß ¥ÁªÀw ªÀiÁrzÉÝãÉ. MAzÀÄ PÀAw£À ªÉÆvÀÛ gÀÆ.5,000/-. MlÄÖ gÀÆ.95,000/- ¥ÁªÀw ªÀiÁrzÉÝãÉAzÀgÉ EgÀ§ºÀÄzÀÄ. CzÀgÀ°è gÀÆ.17,860/- ¯É¸ï r«qÉAmï DUÀÄvÀÛzÉ JAzÀgÉ £À£ÀUÉ UÉÆwÛ®è. CzÀgÀ°è ¥Àæw±ÀvÀ 5 PÀgÁj£À ¥ÀæPÁgÀ ¥sÉÆÃgïªÉÄ£ï PÀ«ÄõÀ£ï gÀÆ.6,250/- £ÀÄß gÀÆ.1,25,000/- aÃnUÉ PÀrvÀªÁUÀÄvÀÛzÉ JAzÀgÉ £À£ÀUÉ UÉÆwÛ®è. D aÃn ¸ÀA§AzÀs¥ÀlÖAvÉ £Á£ÀÄ ¥ÀÇtð aÃnAiÀÄ PÀAvÀ£ÀÄß PÀnÖ®è JAzÀgÉ ¸ÀjAiÀÄ®è. ¥sÉÆÃgïªÉÄ£ï PÀ«ÄõÀ£ï ªÀÄvÀÄÛ ¯É¸ï r«qÉAmï PÀrvÀ ªÀiÁrzÀ°è £À£ÀUÉ D aÃnAiÀÄ ¨Á§ÄÛ gÀÆ.70,890/- DgÉÆæ ¥ÁªÀw¸À®Ä ¨ÁQ EvÀÄÛ JAzÀgÉ ¸Àj. £À£ÀUÉ CµÀÄÖ ªÉÆvÀÛ ªÀiÁvÀæ ¨ÁQ ¤ÃqÀ®Ä EzÀÝgÀÆ PÀÆqÀ gÀÆ.1 ®PÀë ªÉÆvÀÛzÀ ZÉPÀÌ£ÀÄß DgÀÉÆæ ¤ÃqÀĪÀ CUÀvÀå EgÀ°®è JAzÀgÉ Judgment 15 C.C.No.9976/2018 ¸ÁQëAiÀÄÄ, 2015 gÀ°è aÃnAiÀÄ ªÀåªÀºÁgÀ ªÀÄÄV¢zÀÄÝ, DgÉÆæ 2017 gÀ°è gÀÆ.1 ®PÀëzÀ ZÉPÀÌ£ÀÄß £À£ÀUÉ PÉÆnÖzÀÝgÀÄ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. 29.08.2015 gÀ°è £Á£ÀÄ gÀÆ.2,37,500/- ºÁUÀÆ gÀÆ.1 ®PÀëzÀ ZÉPÀÌ£ÀÄß DgÉÆæ¬ÄAzÀ ¹éÃPÀj¹zÉÝ JA§ÄzÁV £ÀÄr¢zÉÝÃ£É JAzÀgÉ ¸Àj. D ZÉPÀÌ£ÀÄß 2017 gÀ°è ¤ÃrzÀÝ®è «£ÁPÁgÀt DgÉÆæAiÀÄ «gÀÄzÀÞ gÀÆ.70,000/- ¥ÁªÀw ªÀiÁqÀ®Ä DgÉÆæ ¤ÃrzÀ ZÉPÀÌ£ÀÄß £Á£ÀÄ zÀÄgÀÄ¥ÀAiÉÆÃUÀ ¥Àr¹PÉÆAqÀÄ gÀÆ.1 ®PÀë JA§ÄzÁV ZÉQÌ£À°è £ÀªÀÄÆ¢¹ ¹¹.£ÀA.9976/18 gÀ ¥ÀæPÀgÀt zÁR®Ä ªÀiÁrzÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è."
19. On going through the said testimony of PW.1, it made clear that, the present case is pertaining to cheque amount of Rs.1,25,000/-. Even, the PW.1 has deposed that, he paid about Rs.1 lakh. Though, in the complaint he stated, the present chit commencing from 21.05.2014 and approximately ended in the month of April, 2016. The above cross-examination discloses that, he paid 19 premium in connection to the present case at Rs.5,000/- p.m. and amounting to Rs.95,000/-. On meticulous perusal of the documents produced by the accused at Ex.D7 also made clear that, from 23.05.2014 till 23.11.2015, 19 premium amounting to Rs.77,140/- were paid by the accused. Therefore, the Ex.D7 also discloses, the chit beginning period 23.05.2014 and termination would be on 23.05.2016. Therefore, six months Judgment 16 C.C.No.9976/2018 earlier to the termination period the chit became incomplete, hence, only accused paid 19 installments, amounting to Rs.77,140/-. But it was suggestion made by the accused from the statement maintained by the accused at Ex.D8, the accused paid Rs.95,000/- to the complainant, the complainant has not denied the same and deposed that, it may be.
20. The above said re-production of portion of cross- examination of PW.1, which also discloses, the foreman commission as per the agreement at Ex.P6 at 5% would amount to Rs.6,250/-. The same is not denied by the complainant. As per the suggestion made to PW.1, after deducting foremen charges and less dividend, the accused only liable to pay the balance amount of Rs.70,890,/-, as reflected in Ex.D8 is been admitted by the accused. By way of making such admission, it also made clear that, accused admitted the liability covered under the present cheque was Rs.70,890/-. Therefore, to the same extent the effect is determine that, in connection to the present cheque, the accused admitted his liability to pay the chit amount of Rs.70,890/-.
21. In the further cross-examination it also reveal that, the accused has suggested that, only for the payment of Rs.70,890/-, Judgment 17 C.C.No.9976/2018 no need to issue cheque at Ex.P1 for Rs.1 lakh. But the PW.1 has denied the same and stated that, the said chit transaction was ended during 2015 and accused gave cheque during 2017. The PW.1 clearly admitted that, on 29.08.2015, he got received cheque for Rs.2,37,500/- and Rs.1 lakh respectively. On the one hand he clearly admitted the receipt of cheque on 09.08.2015 and another breath he deposed that, it was issued in the year 2017, therefore, the factum of the accused got issued the questioned cheque at Ex.P1 to the complainant is not in dispute. It also suggested to the PW.1 that, the cheque was not issued in the year 2017 and unnecessarily inspite the accused liable to pay Rs.70,000/- by misusing the questioned cheque, filed the present case by enter the amount of Rs.1 lakh and filed the false case.
22. The said evidence of PW.1 and defence of the accused, it made clear that, accused admitted his liability of payment of Rs.70,890/-. No doubt, the questioned cheque bares the amount of Rs.1 lakh. The accused has contended that, cheque was issued to the complainant on 29.08.2015. If at all, accused gave the blank cheque to the complainant being a financial institute, it may be presume that, as per Section 21 of Negotiable Instruments Act, inchoate cheque was issued by the accused, authorized to complainant to fill the amount, which is payable by Judgment 18 C.C.No.9976/2018 the accused. Therefore, the unless mentioned the date and amount or other particulars handed over the questioned cheque to the complainant it has to be presume that, for the discharge of legal liability, the accused got issued the cheque. Though the accused has projected the case stating he cleared the chit amount involved in the present case, in that regard, no document is been placed. Therefore, the complainant could have been filled cheque by mentioning the amount of Rs.1 lakh on 20.12.2017, he utterly failed to prove, how the accused is liable to pay Rs.1 lakh against admission made by the PW.1 as well as accused has to liability of the accused only for Rs.70,890/-. Therefore, though the complainant wrongly inserted amount of Rs.1 lakh against admitted amount of Rs.70,890/-, he utterly failed to prove that, the accused is liable to pay the cheque amount, but he successfully in prove that, accused is liable to pay Rs.70,890/-. The accused document also reveal as per Ex.D8 that, he liable to pay Rs.70,890/-. Only because of filled cheque for higher amount is not a ground to decline the relief, but the purpose of filing the present case including admitted liability of the accused is to be seen and the case has to be partly considered that, the questioned cheque was issued by the accused only for the payment of Rs.70,890/- not in respect of Rs.1 lakh. The Judgment 19 C.C.No.9976/2018 complainant utterly failed to discloses, the accused liability to an extent of Rs.1 lakh, but able to prove the liability of accused for Rs.70,890/-. Therefore, it has to be consider that, the sum of Rs.70,890/- is the legally recoverable amount payable by the accused to the complainant. Hence, from the point of questioned cheque it has to be directed the accused Nos.1 and 2 pay sum of Rs.70,890/- to the complainant. Otherwise, accused No.2 is personally liable to pay the said money coupled with additional fine amount of Rs.1,000/- and if the accused failed to deposit the said money, accused No.2 shall undergo simple imprisonment for 4 months. Out of the recovered amount of Rs.71,890/-, Rs.70,890/- shall be payable to the complainant as compensation and remaining amount of Rs.1,000/- shall be payable to the state. If that is done, it will meet the ends of justice. The same offence has been continued till this day, therefore, the complainant has successfully established the guilt of the accused Nos.1 and 2, regarding commission of offence punishable under Section 138 of Negotiable Instruments Act. The complainant has complied the mandatory requirement and established his case successfully. Despite that, the accused Nos.1 and 2 have not set right the wrong committed by them as per Section 138 of Negotiable Instruments Act.
Judgment 20 C.C.No.9976/2018
23. As discussed above by way of furnishing clear, convincing, corroborative, oral as well as documentary evidence has proved that, the accused Nos.1 and 2 have committed the offence punishable under Section 138 of Negotiable Instruments Act. Therefore, looking into the transaction, it is the considered opinion of this court that, the accused Nos.1 and 2 have taken bald, inconsistence defence without any base and failed to prove their improbable defence. Contrary, the PW.1 has established his case beyond the reasonable doubt through oral as well as documentary evidence. Thereby, unnecessarily cause the complainant to approach this court of law, therefore, the accused No.2 is liable to be punished by way of imposing fine sentence. Therefore, the accused Nos.1 and 2 are to be convicted by imposing sum of Rs.70,890/- coupled with additional fine amount of Rs.1,000/-. Out of the said fine amount, sum of Rs.70,890/- shall be payable to the complainant as compensation and remaining amount of Rs.1,000/- shall be payable to the state as fine amount. Accordingly, if the accused Nos.1 and 2 fails to pay the whole fine amount, the accused No.2 shall undergo simple imprisonment for 4 months. Thereby, one more opportunity has provided to the accused Nos.1 and 2 to comply the order. Otherwise, the very purpose of filing complaint will be defeated. As discussed above, Judgment 21 C.C.No.9976/2018 the complainant has proved his case beyond reasonable doubt. In the result, the accused Nos.1 and 2 shall sentence to pay the fine amount as detailed in the order portion. Accordingly, Point No.1 is answered the partly Affirmative and Point No.2 is answered in the Affirmative.
24. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
ORDER Accused Nos.1 and 2 found guilty for the offence punishable under Section 138 of Negotiable Instruments Act.
Acting under Section 255(2) of Cr.P.C. the accused Nos.1 and 2 are convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay fine of Rs.71,890/-.
Out of the said fine amount, sum of Rs.70,890/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount of Rs.1,000/- shall be payable to the state as fine amount.
In default of pay the fine amount, the accused No.2 shall under go simple imprisonment for 04 (Four) Months.
Judgment 22 C.C.No.9976/2018 The bail bond and cash security/surety bond of the accused stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 10th day of February
- 2020) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Mohan.B List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque Ex.P1(a) : Signature of accused Ex.P2 : Bank endorsement Exs.P3 & P4 : Office copy of legal notices Exs.P5 & P6 : Postal receipts Exs.P7 & P8 : Postal Acknowledgment cards Exs.P9 & P10 : Letters dtd:28.02.2018 Exs.P11 & P12 : Postal covers Exs.P13 to P30 : Temporary receipts & Receipts. Ex.P31 : Private complaint Ex.P31(a) : Signature of complainant Exs.P32 to P40 : Xerox copies of Temporary receipts & Receipts.
List of Witnesses examined on behalf of the defence:
DW.1 : C.Suresh Judgment 23 C.C.No.9976/2018
List of Exhibits marked on behalf of defence:
Ex.D1 : Letter dtd:28.02.2018
Ex.D2 : Postal receipt
Ex.D3 : GMS courier receipt
Ex.D4 : Postal Acknowledgment Card `
Ex.D5 : Application form for enrolment
Ex.D5(a) : Signature of complainant
Ex.D6 : Agreement of chit
Ex.D6(a) : Signature of complainant
Ex.D7 : chit bid slab
Ex.D8 : Payment & Deduction details of chit account
Ex.D9 : Copy of chit ledger extract
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 24 C.C.No.9976/2018
10.02.2020.
Comp -
Accd -
For Judgment
Judgment pronounced in the open court vide separate order.
***** ORDER Accused Nos.1 and 2 found guilty for the offence punishable under Section 138 of Negotiable Instruments Act.
Acting under Section 255(2) of Cr.P.C. the accused Nos.1 and 2 are convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay fine of Rs.71,890/-.
Out of the said fine amount, sum of Rs.70,890/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount of Rs.1,000/- shall be payable to the state as fine amount.
Judgment 25 C.C.No.9976/2018 In default of pay the fine amount, the accused No.2 shall under go simple imprisonment for 04 (Four) Months.
The bail bond and cash security/surety bond of the accused stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Later, the counsel for convictee is present and filed the application under Section 424 of Cr.P.C. seeking for dispense the judgment till appeal period. Hence, application is allowed.
Sentence passed above is dispensed till appeal period.
The convictee shall execute the
personal bond for sum of Rs.71,890/-as
per the judgment.
Office is hereby directed to take
bond.
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.