Bangalore District Court
Society vs No.54/3 on 24 November, 2021
IN THE COURT OF THE XL ADDL. CHIEF
METROPOLITAN MAGISTRATE, AT: BENGALURU
Present : Sri.PADMAKAR VANAKUDRE,
B.A.,LL.B.,
XL Addl., Chief Metropolitan
Magistrate, Bengaluru.
JUDGMENT U/S 355 OF Cr.P.C.1973
1. Serial number : C.C. No.12610/2019
2. Name of the GUBBI CREDIT CO-OPERATIVE
complainant SOCIETY, Having Branch office
at No.1569, 1st Floor, 4th Cross,
7th Main, RPC Layout, Hampi
Nagar, Vijanagar,
Bangalore- 560 104.
Rep. By its Branch Manager,
Shakunthala S.C.
(By Sri. Nagaraju, Advocate)
3. Name of the : Muniraju
accused No.54/3, 20th Main Road,
Marenahalli, Vijayanagar,
Bangalore-560 040.
(By Sri. Mahesh T., Advocate)
4. The offence : Section 138 of the N. I. Act
complained of or
proved
5. Plea of the accused : Pleaded not guilty
6. Final order : Accused found guilty
7. Date of order : 24-11-2021
C.C.No.12610/2019
2
:J U D G M E N T:
The complainant has lodged this complaint against the accused alleging the commission of offence punishable under the Sec.138 of Negotiable Instruments Act.
2. The case of the the complainant in brief is as under:
The complainant society started the chit by name Mallige group No.4 of Rs.1,00,000/-. The accused being the member of said chit group filed the bid application on 17-05-2016 to offer on the same day and accepted the bid offered by the society of Rs.29,000/-. Chit amount of Rs.71,000/- has been transferred to S/B account of accused on 25-5-2016. The accused has paid the chit amount of Rs.5000/- per month till October 2016 and thereafter he has not paid the remaining chit amount. Towards payment of due C.C.No.12610/2019 3 amount the accused has issued a cheque bearing No.313273 dated 16-03-2019 for a sum of Rs.92,394/- drawn on Janatha Co-Operative Bank Limited, Amarjyothinagar Branch, Bengaluru, in favour of the complainant.
3. The complainant has presented said cheque to the Bank for encashment and it was returned by the Bank unpaid on 19-03-2019 with an endorsement "funds insufficient". The complainant has issued a notice in writing to the accused on 12-04-2019 making a demand for the said amount of money. The said notice has been returned unclaimed. Despite demand notice the accused has failed to make the payment of cheque amount. Hence, the accused has committed an offence punishable Sec.138 of Negotiable Instruments Act.
C.C.No.12610/2019 4
4. After preliminary inquiry, this Court has taken the cognizance of the offence punishable under section 138 of Negotiable Instruments Act against the accused. The accused has appeared through his learned counsel and got released on bail. Plea of the accused has been recorded. The accused has not pleaded guilty but claimed that he has defence to make.
5. The complainant society has got examined its secretary as PW-1 and got exhibited 06 documents at Exs.P-1 to P-6. Despite sufficient opportunity the accused has not chosen to cross-examine the P.W-1. Learned counsel for the accused has submitted that there is no cross-examination of P.W-1.
6. The statement of accused as contemplated under section 313 of Cr.P.C., is recorded. The accused has denied all the incriminating evidence appearing C.C.No.12610/2019 5 against him in the evidence. The accused has not chosen to adduce his evidence.
7. Heard arguments. During the course of arguments both the parties have filed memo praying to pass judgment on terms of memo. Perused materials placed on record.
8. Points that would arise for the consideration of this court are as under:
1. Whether the complainant proves beyond all reasonable doubts that, the accused in discharge of legally recoverable debt has issued a cheque bearing No.0313273, dated 16-03-2019 for Rs.92,394/- and the same was dishonoured. Despite demand notice the accused has failed to make the payment cheque amount and thereby committed an offence punishable U/Sec.138 of Negotiable Instruments Act ?
2) What Order?
C.C.No.12610/2019 6
9. My findings on the above said points as as under:
Point No.1: In the affirmative. PointNo.2:As per final order, for the following...
REASONS
10. Point No.1: This is a case of the complainant that, the accused has received chit amount of Rs.71,000/- from complainant organization and in discharge of said liability the accused has issued a cheque bearing No.313273, dated 16-03-2019 for Rs.92394/-. Said cheque came to be dishonoured for a reason Insufficient Funds. The demand notice has been returned unserved. Despite demand notice the accused has not paid the cheque amount and thereby committed an offence.
11. To constitute an offence punishable under section 138 of The Negotiable Instruments Act, there must be following ingredients:
C.C.No.12610/2019 7
1. drawing of the cheque in discharge of debt or liability;
2. presentation of the cheque to the bank;
3. returning the cheque unpaid by the drawee Bank;
4. giving notice in writing to the drawer of the cheque demanding payment of the cheque amount;
5. failure of the drawer to make payment within 15 days of receipt of the notice.
12. In order to prove the case, the complainant society has got examined its secretary as P.W.1. She has deposed reiterating the averments of complaint.
He has deposed that the accused has received chit amount of Rs.71,000/- and in discharge of his liability the accused has issued the cheque in favour of the complainant. She has got exhibited 6 documents i.e., the cheque, Bank memo, copy of Demand notice, Postal receipt, Postal cover and Authorisation letter at Ex.P-1 to Ex.P-6.
C.C.No.12610/2019 8
13. A perusal of Ex.P-1 shows the cheque was issued on 16-03-2019. A perusal of Ex.P-2 shows that it was presented to bank and returned unpaid on 19-03-2019. A perusal of Ex.P-3 shows that the complainant has made a demand for the payment of the cheque amount by giving notice on 12-04-2019, which is within thirty days from the receipt of Ex.P-2. A perusal of Ex.P-5 shows that the Demand Notice has been returned unserved with an endorsement dated 24-04-2019. The complainant has lodged the complaint on 04-06-2019. Therefore, a perusal of the dates of events on Ex.P-1 to P-5 it is clear that the complaint is well within the time of limitation as per the provisions of section 138 of Negotiable Instruments Act.
14. An essential ingredient of section 138 of Negotiable Instruments Act is that the cheque in question must have been issued towards a legally enforceable debt or liability. In this case the accused C.C.No.12610/2019 9 has not denied the cheque and signature on it. When the execution of cheque is admitted by the accused, by such admission, the presumption under section 118 (a) would arise that it is supported by a consideration. Even under section 139, a rebuttal presumption shall be raised that the cheque in question was issued towards discharge of a legally enforceable debt. These presumptions are rebuttable and the accused can prove non-existence of a consideration by raising a probable defence. Therefore, the onus is on the accused to rebut the presumption available under section 118 and 139 of Negotiable Instruments Act and to show that the cheque in question was not issued towards any legally enforceable debt or liability.
15. The accused has not denied the receipt of Chit amount of Rs.71,000/- and issuance of cheque. To rebut the presumption, he has neither cross-examined C.C.No.12610/2019 10 P.W-1 nor adduced any evidence on his behalf. Thus, the evidence of P.W-1 remained undisputed.
16. The complainant by producing documents and through oral evidence has proved the existence of legally recoverable debt and the fact that the accused has issued a cheque at Ex.P-1 in discharge of said debt. On the other hand the accused has failed to rebut the presumption available in favour of the complainant U/s.118 and 139 of N.I.Act.
17. A perusal of documents on record shows that the complaint is presented within the time prescribed U/s.138 and 142 of Negotiable Instruments Act. The cheque at Ex.P-1 is returned by the bank unpaid because of the amount of money standing to the credit of the account of accused is insufficient to honour the cheque. Despite the service of demand notice the accused has failed to make the payment of cheque C.C.No.12610/2019 11 amount and thereby committed an offence under section 138 of Negotiable Instruments Act.
18. At the time of arguments the complainant and accused have filed a memo stating that the matter has been settled and judgment may be passed in terms of settlement. It is stated that the accused has agreed to repay the amount of Rs.80,000/- the the complainant in 4 monthly installments of Rs.15,000/- each and one installment of Rs.20,000/- commencing from 01-01- 2022 to 01-05-2022.
19. Considering the memo filed by the parties and submissions of learned counsels for complainant and the accused, I deem it proper to grant time to the accused for payment of the amount to the complainant.
20. Therefore, looking to the facts and circumstances of the case I am of the considered view that the C.C.No.12610/2019 12 complainant has established that the accused has committed an offence punishable under section 138 of Negotiable Instrument Act. Hence, I proceed to answer point No.1 in the affirmative.
21. Point No.2: In view of findings on point No. 1 I proceed to pass the following:-
:O R D E R:
The accused is found guilty. Acting under section 255(2) of Cr.P.C, I hereby convict the accused for the offence punishable under section 138 of The Negotiable Instruments Act.
The accused is sentenced to pay fine of Rs.80,000/- (Rupees Eighty thousand only) as per the joint memo. In default of payment C.C.No.12610/2019 13 of fine he shall under go simple imprisonment for a period of three months.
On deposit, the same shall be paid to the complainant as a compensation.
The bail bond and surety bond of the accused stands canceled after appeal period is over.
The office to supply the copy of judgment to the accused forth with, free of cost.
(Dictated to the stenographer directly on the Lap-Top Computer, script revised, corrected and then signed and pronounced by me in the open court on this the 24th day of November 2021) (PADMAKAR VANAKUDRE) XL Addl., Chief Metropolitan Magistrate, Bengaluru.
:A N N E X U R E:
List of witnesses examined on behalf of Complainant: P.W1. Shankunthala S.C. C.C.No.12610/2019 14 List of documents masrked on behalf of Complainant: Ex.P1. Cheque Ex.P2. Bank memo Ex.P3. Copy of Demand notice Ex.P4. Postal receipt Ex.P5. Postal cover Ex.P6. Authorisation letter. List of witnesses examined on behalf of defence:
Nil List of documents marked on behalf of defence:
Nil.
XL Addl., Chief Metropolitan Magistrate, Bengaluru.
C.C.No.12610/2019 15 (Juddment pronounced in the open court) :O R D E R:
The accused is found guilty. Acting under section 255(2) of Cr.P.C, I hereby convict the accused for the offence punishable under section 138 of The Negotiable Instruments Act.
The accused is sentenced to pay fine of Rs.80,000/- (Rupees Eighty thousand only) as per the joint memo. In default of payment of fine he shall under go simple imprisonment for a period of three months.
On deposit, the same shall be paid to the complainant as a compensation.
C.C.No.12610/2019 16 The bail bond and surety bond of the accused stands canceled after appeal period is over.
The office to supply the copy of judgment to the accused forth with, free of cost.
(Vide separate order) XL Addl., Chief Metropolitan Magistrate, Bengaluru.