Bangalore District Court
M/S.Hinduja Leyland Finance Ltd vs Mr.Monappa Gowda on 1 June, 2018
IN THE COURT OF THE XXV ADDL. CHIEF
METROPOLITAN MAGISTRATE, AT BANGALORE
Dated this the 1ST day of JUNE , 2018.
Present: Smt Shirin Javeed Ansari, BA LL.B(Hon's)LL.M
XXV Addl. Chief Metropolitan Magistrate,
Bangalore.
C.C.No.23484/2015
Complainant: M/s.Hinduja Leyland Finance Ltd.,
Registered office No.202., 2nd floor
Royal Corner Building , Lalbagh Road
Bangalore.
Represented by its duly constituted
Attorney /authorized representative
Mr.N.Girsh.
( By Smt Kavitha H.N-Advocate )
- Vs -
Accused: 1. Mr.Monappa Gowda
ANM Quarters, Santhakatte
Moodubelle , Kapu, Udupi Dist
576120.
2. Jagadeesha Rao(Guarantor)
House No.2/65, Bhairampalli
Bramavara , Udupi Dist.
( By Sri Deviprasad - Advocate )
Offence complained of: U/s. 138 of Negotiable Instruments
Act.
Plea of accused: Pleaded not guilty.
Final Order: Accused No.1 and 2 are Convicted.
Date of order: 01.06.2018.
2 C.C.No.23484/2015
JUDGMENT UNDER SEC.355 OF CR.PC
The complainant filed this complaint under
Sec.200 Cr.P.C. against the accused for the offence
punishable under Sec.138 Negotiable Instruments Act
(Herein after called as N.I.Act for reference).
2. The case of the prosecution is as under :
The complainant is a limited company
incorporated as per the Companies Act, 1956 having
its branch office at Bangalore The complainant is
represented by its Power of Attorney Sri N.Girish. In
the course of its financial services it has introduced
scheme for disbursing commercial vehicle loan.
3. It is further submitted by the complainant
that the accused person had applied for commercial
vehicle loan in the specified application form of the
complainant. The accused also produced the required
documents as proof of his income / salary at the time
of submitting application to the complainant and also
executed certain documents. The complainant further
3 C.C.No.23484/2015
submits that it is has issued loan to the accused vide
loan Ref No. KABNUD00010 for his own bonafide and
genuine use. The accused has utilized the said loan
and failed to make payment and towards discharge of
his part liability, the accused has issued the cheque
bearing No.186793 dt.7.8.2015 for Rs.4,00,000/-
drawn on State Bank of Mysore. The accused under
took that the said cheque will be honored when
presented. The complainant further submits that
when the cheque was presented for payment through
their banker State Bank of India, Bangalore, the same
returned for the reason "Funds Insufficient", vide
memo dt.10.8.2015. The same was intimated to the
accused. The accused has issued the said cheque
towards discharge of part liability which the accused
has incurred for availing the loan issued by the
complainant. Thereafter, the complainant got issued
legal notice dt.21.8.2015 sent by RPAD calling upon
the accused to make payment of the dishonored
cheque within 15 days. The notice sent through, RPAD
returned with postal shara "not known and intimation
delivered" on 28.8.2015 and 29.8.2015.
4 C.C.No.23484/2015
4. The complainant further submits that this
was brought to the notice of the accused .Despite, of
this the accused has the information that the cheque
was dishonored and the accused is due to pay the
value of the above said cheque, but, failed and
neglected to pay the value of the cheque within 15
days. Thus, the accused has committed an offence
punishable u/s.138 Negotiable Instrument Act . The
conduct of the accused after utilizing the loan facility
of the complainant and issuing the cheque towards
discharge of his liability would definitely constitute
breach of trust and cheating u/s.406 and 420 of IPC.
Since the complainant has issued the loan by
reposing implicit faith, trust and confidence on the
accused, the accused has caused wrongful loss to the
complainant and made wrongful gain for himself.
Hence, the complainant prays to convict the accused
person for the offence punishable u/s.138 Negotiable
Instrument Act and to award compensation to the
complainant under the provisions of Sec.357 Cr.P.C
towards the face value of the dishonored cheque,
5 C.C.No.23484/2015
other expenses, incidental charges and cost of legal
notice etc. Hence, this complaint.
5. In pursuance of the process issued, the
accused persons appeared before the court on
13.10.2017 and is on bail.
6. Copy of the prosecution papers are furnished
to the accused persons as required under law.
7. Plea under Sec.138 N.I.Act is framed , read
over and explained to the accused in vernacular. The
accused persons pleaded not guilty and claimed the
trial.
8. PW1- got examined and got marked the
documents at Ex.P.1 to Ex.P.8 for the complainant .
9. Due to the absence of accused persons
recording of statement of the accused u/s.313 Cr.P.C
is dispensed with.
6 C.C.No.23484/2015
10. Heard arguments of learned counsel for
the complainant. Learned counsel for the accused did
not even submit their arguments. I have carefully
perused the materials on record.
11. On the basis of the contents of the
complaint the following points arise for my
consideration. :
1. Whether the complainant proves
beyond reasonable doubt that
the accused is/are guilty of
alleged offence?
2. What order ?
12. My findings to the above points
are as follows:
Point No.1 :In the Affirmative.
Point.No.2 :As per final order for
the following:
REASONS
13.Point No.1: The complainant has filed the
complaint alleging that the accused has committed
an offence punishable u/s.138 Negotiable Instrument
Act.
7 C.C.No.23484/2015
14. The complainant is a limited company
incorporated as per the Companies Act, 1956 having
its branch office at Bangalore The complainant is
represented by its Power of Attorney Sri N.Girish. In
the course of its financial services it has introduced
scheme for disbursing commercial vehicle loan.
15. It is further submitted by the complainant
that the accused person had applied for commercial
vehicle loan in the specified application form of the
complainant. The accused also produced the required
documents as proof of his income / salary at the time
of submitting application to the complainant and also
executed certain documents. The complainant further
submits that it is has issued loan to the accused vide
loan Ref No. KABNUD00010 for his own bonafide and
genuine use. The accused has utilized the said loan
and failed to make payment and towards discharge of
his part liability, the accused has issued the cheque
bearing No.186793 dt.7.8.2015 for Rs.4,00,000/-
drawn on State Bank of Mysore. The accused under
took that the said cheque will be honored when
8 C.C.No.23484/2015
presented. The complainant further submits that
when the cheque was presented for payment through
their banker State Bank of India, Bangalore, the same
returned for the reason "Funds Insufficient", vide
memo dt.10.8.2015. The same was intimated to the
accused. The accused has issued the said cheque
towards discharge of part liability which the accused
has incurred for availing the loan issued by the
complainant. Thereafter, the complainant got issued
legal notice dt.21.8.2015 sent by RPAD calling upon
the accused to make payment of the dishonored
cheque within 15 days. The notice sent through RPAD
returned with postal shara "not known and intimation
delivered" on 28.8.2015 and 29.8.2015.
16. The complainant further submits that this
was brought to the notice of the accused .Despite, of
this the accused has the information that the cheque
was dishonored and the accused is due to pay the
value of the above said cheque, but, failed and
neglected to pay the value of the cheque within 15
days. Thus, the accused has committed an offence
9 C.C.No.23484/2015
punishable u/s.138 Negotiable Instrument Act . The
conduct of the accused after utilizing the loan facility
of the complainant and issuing the cheque towards
discharge of his liability would definitely constitute
breach of trust and cheating u/s.406 and 420 of IPC.
Since the complainant has issued the loan by
reposing implicit faith, trust and confidence on the
accused, the accused has caused wrongful loss to the
complainant and made wrongful gain for himself.
Hence, the complainant prays to convict the accused
person for the offence punishable u/s.138 Negotiable
Instrument Act and to award compensation to the
complainant under the provisions of Sec.357 Cr.P.C
towards the face value of the dishonored cheque,
other expenses, incidental charges and cost of legal
notice etc. Hence, this complaint.
17. In order to prove his case, the complainant
is examined as PW 1. The complainant has reiterated
the complaint averments in the sworn statement
affidavit which was also treated as his chief-
examination . The complainant further relied on the
10 C.C.No.23484/2015
documents at Ex.P.1 to Ex.P.8. Ex.P.1 is the Certified
copy of Special Power of Attorney . Ex.P.2 is the
cheque in question. Ex.P.3 is the cheque return memo
dt.10.8.2015. Ex.P.4 is the legal notice, dt.21.8.2015.
Ex.P.5 and Ex.P6 are the postal receipts. Ex.P.7 &
Ex.P8 are the postal covers.
18. Inspite of sufficient opportunities and
hearing dates, the accused did not cross-examine
PW1 . As such the oral and documentary evidence
put forth by the complainant remained unchallenged.
19. The contents of the complaint and the
examination-in-chief affidavit clearly establish the
ingredients of Sec.138 Negotiable Instrument Act. The
complainant in order to prove his case relied on the
oral evidence. Beside, the evidence is supported by
the documents produced by him. There is no
ambiguity in the oral and documentary evidence
brought on record. On careful examination of all the
documents of the complainant, it is clear that the
complaint is filed well within time. The bank
11 C.C.No.23484/2015
endorsement, bearing the shara "Funds Insufficient"
attracts Sec.138 Negotiable Instrument Act.
20. The next point for consideration is whether
the presumption could be drawn in favour of the
complainant. Section 139 of the Act provides that
unless contrary is proved, it shall be presumed that
the holder of the cheque received the same for
discharge of any debt or liability. The word "shall"
indicate that it is mandatory on the part of the
court to draw the presumption in favour of the holder
of the cheque in due course unless rebutted. At the
cost of repetition it is worth to note that the accused
has not taken any steps to rebut the said
presumption.
21. That apart, Sec.118 of Negotiable Instrument
Act lays down special rules of evidence applicable to
Negotiable Instruments. The presumption is one of
Law and thereunder a court shall presume that the
instrument was endorsed for consideration. According
to the complainant, they have issued vehicle loan to
the accused person and the accused person agreed to
12 C.C.No.23484/2015
repay the same with interest within short period of
time along with penal interest and incidental charges.
The complainant has also produced the cheque
marked at Ex.P.2. The complainant has further
produced the bank endorsement marked at Ex.P.3
which clearly go to reveal that the cheque was
dishonored for the reason "Funds Insufficient", The
complainant has also produced the copy of legal
notice marked at Ex.P.4 and the postal receipts
marked at Ex.P.5 and P.6 . As the evidence of the
complainant remained unchallenged , the documents
produced by the complainant also remained
unchallenged.
22. In this case plea of the accused is recorded
as per Sec..251 Cr.P.C, wherein the accused pleaded
not guilty. As per Sec.251 of Cr.P.C. the accused has
to state about his defence. Here, except pleading not
guilty, and stating that he has got defence evidence
to be lead, but, neither the accused nor his counsel
have come forward to lead any defence evidence. As
per the decision reported in AIR 2014 SC 2528
13 C.C.No.23484/2015
Indian Bank Association v/s. Union of India)
Crl.P.NO.8943/2010 M/s.Transgare Pvt.Ltd,
v/s.Dr.R.Parvathreddy and in Rajesh Agarwals
Case, wherein it is held that the accused cannot
simply say "I am innocent or I plead not guilty".
The presumption of law laid down in the afore said
decision is squarely applicable to the facts and
circumstances of this case. As such it cannot be taken
that the accused has rebutted the presumption of law
by mere pleading not guilty.
23. In this context , it is necessary to refer the
decision of the larger bench of the Hon'ble Apex Court
held in Rangappa v/s. Mohan reported in
AIR 2010 SC 1889 that :
"in the light of these extract, we are
in agreement, with the respondent -
claimant that presumption mandated
by Sec.139 of the Act does not indeed
include the existence of legally
enforceable debt or liability "
24. From the discussion made supra it is clear
that the accused has neither taken probable defence
14 C.C.No.23484/2015
nor taken steps to prove the same. The contention of
the repayment of the amount covered under the
cheque is also not proved through cogent and
acceptable evidence. To put it other way, the accused
has not rebutted the presumption of Law available in
favour of the complainant as envisaged under
sec.139 and 118 of Negotiable Instrument Act.
Accordingly, the case of the complainant is believable
one. Despite of giving sufficient opportunity the
accused has not bothered to lead defence evidence.
The accused has not rebutted the case of the
complainant. Hence, this Point No.1 is answered in the
Affirmative.
25. Point No.2: In view of the reasons stated
and discussed above, the complainant has proved
the guilt of the accused for the offence punishable
under Sec.138 Negotiable Instruments Act .
Hence, I proceed to pass the following :
15 C.C.No.23484/2015
ORDER
Acting u/s.255(2) Cr.P.C accused No.1 and 2 are convicted for the offence punishable under Sec.138 Negotiable Instruments Act . Accused No.1 and 2 are jointly and severally sentenced to pay fine of Rs.4,20,000/-.(Rs.Four Lakhs Twenty Thousand only) In default, shall under go SI for a period of one year .
Acting under Section 357 (1) (b) of Cr.P.C, out of the fine amount the complainant is entitled for Rs.4,15,000/-.(Rs.Four Lakhs Fifteen Thousand Only) towards compensation amount.
Acting under Section 357 (1) (a) of Cr.P.C, the remaining fine amount of Rs.5,000/- (Rupees Five Thousand Only) is confiscated to the State .
Furnish free copy of judgment and order to convicted-accused.
(Dictated to the Stenographer directly on the computer, typed by her , corrected and signed then pronounced by me in the open court on this the 1st day of June , 2018).
(SHIRIN JAVEED ANSARI ) XXV A.C.M.M., BANGALORE.
16 C.C.No.23484/2015ANNEXURE
1) LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
P.W.1 : Girish N.
2) LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P.1 : Authority letter.
Ex.P.2 : Cheque. Ex.P2(a) : Signature of accused. Ex.P.3 : Cheque return memo. Ex.P.4 : Notice copy. Ex.P.5&P6 : Postal receipts. Ex.P.7&P8 : Postal Covers.
3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:- -
-Nil-
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED:
-Nil-
( SHIRIN JAVEED ANSARI ) XXV A.C.M.M.,BANGALORE.17 C.C.No.23484/2015
1.06.2018.
For judgment:
ORDER (Judgment pronounced in open court vide separate sheets) Acting u/s.255(2) Cr.P.C accused No.1 and 2 are convicted for the offence punishable under Sec.138 Negotiable Instruments Act . Accused No.1 and 2 are jointly and severally sentenced to pay fine of Rs.4,20,000/-.(Rs.Four Lakhs Twenty Thousand only) In default, shall under go SI for a period of one year .
Acting under Section 357 (1) (b) of Cr.P.C, out of the fine amount the complainant is entitled for Rs.4,15,000/-.(Rs.Four Lakhs Fifteen Thousand Only) towards compensation amount.
Acting under Section 357 (1) (a) of Cr.P.C, the remaining fine amount of Rs.5,000/- (Rupees Five Thousand Only) is confiscated to the State .
Furnish free copy of judgment and order to convicted-accused.
XXV A.C.M.M.,B'lore.
18 C.C.No.23484/2015 19 C.C.No.23484/2015