Bangalore District Court
M/S. Indusind Bank Limited vs Sri. G.Shivaprakash S/O. Govindaswamy on 4 September, 2017
IN THE COURT OF 38th ACMM, BENGALURU
C.C. No.9928/2014
THIS THE 4TH DAY OF SEPTEMBER 2017
Present: Rajanna Sankannanavar,
B.A.,LL.B.,(Spl)
th
38 ACMM, Bangalore.
Complainant: M/s. INDUSIND BANK LIMITED
having it's office at No.87, Induslnd
House, 2nd Floor, Bull Temple Road,
Basavanagudi, Bangalore-19.
Reptd, by its GPA holder by name
Mr.R. Lakshmikanth, Legal Executive
(Sri.S.M.Anees Ahmed Adv for complainant)
V/s
Accused : Sri. G.Shivaprakash S/o. Govindaswamy,
Major, R/o. No.26, J.C.Nagar, 21st Main,
Mahalakshmipuram Post, Bangalore-086
(Sri.L.Mallesh Adv. for Accused)
JUDGMENT
The Complainant has filed present complaint under Section 200 of Cr.P.C. against the accused alleging that accused person has committed an offence punishable under Section 138 of the NI Act.
(SCCH-15) 2 CC.9928/2014
2. The facts of the complaint are as follows:
The complainant Bank M/s. Ashok Leyland Finance ltd., presently known as M/s. IndusLnd Bank Ltd., was a company incorporated under the provisions of the Companies Act 1956 and was involved in the business of providing finance to the needy persons for purchasing and hiring the motor vehicles. The accused has approached the complainant Bank for availing financial assistance for the purchase of Volve 7700 Hybrid(Bus) vehicle, as such the complainant bank accepted the proposal and accordingly a sum of Rs. 15,00,000/- was sanctioned pursuant to the loan agreement entered in between the complainant bank with the accused vide contract No. KBB00508D and thereafter the accused took delivery of the said vehicle bearing Registration No.KA- 22/A-6545, the accused being a chronic defaulter and not made payments, subsequently the accused had approached the complainant Bank for settling the entire loan amount and he had agreed to make part payment towards the full and final settlement amount, accordingly (SCCH-15) 3 CC.9928/2014 accused has signed and issued a cheque bearing No.779428 dtd. 8.11.2013, drawn on HDFC Bank Kanappana Agrahara Branch, Bangalore for a sum of Rs. 15,62,848/-. Thereafter the plaintiff bank has presented the said cheque and same is returned on 09.11.2013 with endorse as "FUNDS INSUFFICIENT". Thereafter, complainant bank has issued legal notice to the accused on 13.11.2013 through RPAD in the address given by him and same returned on 16.11.2013 with share Addressess Left cover returned to the complainant. Hence, prays to take action against the accused.
3. After submitting complaint by complainant, my predecessor office has been took the cognizance and recorded statement of complainant and registered C.C. in Register No.3 and issue summons to the accused as required under Section 204 of Cr.P.C. and same is served on him. Then accused was appeared through his advocate and enlarged on court bail.
4. Afterwards, plea was red over and explained to the accused and he has not pleaded guilty and tried to be (SCCH-15) 4 CC.9928/2014 claimed. Hence, the matter was posted for complainant's evidence.
5. In order to proving allegation, the Complainant himself examined as P.W.1 and got marked Ex.P.1 to 7 After completion of prosecute evidence the accused statement as required U/sec.313 of Cr.P.C. has been recorded and the accused has denied such Incremental evidence and himself examined as D.W.1 and got marked at Ex.D.1.
6. Heard the argument by plaintiff's side.
7. Now the points are arise for the consideration as below:
POINTS
1. Whether the complainant proves that he has presented the cheque bearing No.779428 drawn on HDFC Bank within stipulated time for clearance?
2. Whether the complainant proves that said cheque was dishonor as "Insufficient funds" in the account of accused?
3. Whether, complainant proves that he was issued a notice to the accused for makes a demand for the payment of the said amount of money within 30 days from the date of receipt of information from the bank?(SCCH-15) 5 CC.9928/2014
4. Whether, complaint proves that after service of notice to the accused, he has failed to make the payment of the said amount of money within fifteen days of the receipt of the said notice?
5. Whether, Complainant has proves that said cheque amount was legally enforceable debt?
6. What order?
8. The findings of this Court to the above points are as follows:
Point No.1 : In the Affirmative
Point No.2 : In the Affirmative
Point No.3 : In the Affirmative
Point No.4 : In the Affirmative
Point No.5 : In the Affirmative
Point No.6 : As per final order
for the following.
REASONS
09. POINT No.1 and 2:-: These both points are interlinked and to avoid the repetition of discussion, taken up together for common discussion, One Lakshmikantha R. S/o. Rangaswamy V who is Legal executive and P.A. Holder of IndusInd Bank Ltd., as such he has been examined as PW-1 in lieu of chief- examination affidavit, in the affidavit retreated entire averment made in the complaint. Firstly, herein, P.W.1 (SCCH-15) 6 CC.9928/2014 has authorized person to deposed the evidence on behalf of the complainant Bank, in this, P.W.1 has produced Original General Power of Attorney at Ex.P.1, on perusal of Ex.P.1, it is undisputed document, further speaks that P.W.1 has got right to prosecute the case on behalf of complainant Bank, further P.W.1 has deposed that the accused has borrowed loan amount of sum of Rs.15,00,000/- for the purposed of purchasing of Volve 7700 Hybrid(Bus), in this context, in the oral evidence of P.W.1 and D.W.1 it is seen that, there is no dispute regarding the accused person has borrowed the loan sum of Rs. 15,00,000/- from complainant bank, after sanctioned the loan, the accused person has purchased the such vehicle and further he has re-paid the 5 installment by way of cheque which show in Ex.D.1-Loan Account statement of accused, further it is seen still such Loan account is not closed.
10. Further P.W.1 has deposed that Accused has issued cheque bearing Reg.No.779428 dated 08.11.2013 drawn on HDFC Bank, Konappana Agrahara Branch, Bangalore and same is produced and got marked at (SCCH-15) 7 CC.9928/2014 Ex.P.2, further Ex.P.2 is issued in favour of complainant Bank. Herein the issuance of cheque-Ex.P.2 by Accused in favour of complainant bank is not in dispute. Now question is whether complainant bank submit said cheque for clearance within time or not? in this, Ex.P.2 was presented on 08.11.2013 for collection, but, surprisingly on 09.11.2013 returned the cheque with memo as "funds insufficient", in this, P.W.1 has produced Memo issued by Indusind Bank and same is marked as Ex.P.3, On perusal of the same IndusInd Bank has issued a memo on 09.11.2013 to the complainant bank stating that "INSUFFICIENT FUNDS"
in the account of Accused person. On considering the Ex.P.2 and Ex.P.3 and oral evidence of P.W.1, this court come to conclusion that the complainant Bank established that the cheque bearing No.779428 issued by the Accused was present within stipulated period and same is dishonor as insufficient funds in the account of Accused. Therefore, Point No.1and 2 answered in the affirmative.(SCCH-15) 8 CC.9928/2014
11. Point No.3 and 4 :- These both points are interlinked and to avoid the reputation of discussion, taken up together for common discussion, Admittedly the accused person has on 08.11.2013 issued alleged cheque-Ex.P.2 in favour of complainant society and same was submit on 08.11.2013 for encashment, but, Ex.P.3- endorasment speaks that, said cheque was dishonor, such a situation, it is mandatory that as per Sec. 138(b) of N.I.Act speaks that, makes a demand for the payment of the said amount of money by giving a notice, in writing to the drawer of the cheque within thirty days of the receipt of information from the bank regarding the return of the cheque as unpaid, as such, for fill full the sec. 138(b) of N.I.Act, the complainant bank has on 13.11.2013 issued the legal notice to the accused persons, by way of RPAD copy of said notice marked as Ex.P.4 and by perusing the date of Ex.P.3-endorsment and date of Ex.P.4-Notice, it is clearly disclosed that, within 30 days of after the receipt of information regarding the return of the cheque as unpaid, the complainant bank has issued notice to the accused (SCCH-15) 9 CC.9928/2014 person, further P.W.1 deposed the complainant society has issued legal notice to the accused on 13.11.2013 through RPAD, such RPAD was returned as Left the address and such covered marked at Ex.P.6 and copy of thereon at Ex.P.6(a) now herein the say of accused is that the complainant society has not been issued statutory notice to the resident of accused address, the say of accused is not acceptable, as because of, firstly admittedly the accused was residing in the address which is mentioned on Ex.P.6, further he has examined as D.W.1 deposed that he was residing in the 1st address which is mentioned on Ex.P.6, later he has changed such changed earlier address and residing at No.59, 11th Cross, 17th Main Road, Freedom fighter colony and same is intimated to the complainant Bank, but in this regard there is no material place before court to show he has informed to complainant Bank with respect of changed the earlier address. Under these circumstance the court come to conclusion that the complaint society has issued notice to the accused who has residing in the address as mentioned in the Ex.P.6(a). On looking to this, the notice (SCCH-15) 10 CC.9928/2014 to the accused was issued as contemplated under the provisions of the N.I. Act to the correct address. Thus, the complainant bank has established that issuance of demand notice for the payment of the said amount of money by giving a notice, in writing to the drawer of the cheque within thirty days from the date of receipt of information from the bank regarding the return of the cheque as unpaid, thus the complainant society has established that the accused has failed to make the payment of said loan amount even after received the information regarding dishonor of Ex.P.2. Therefore, this court holds Point No.3 and 4 answered in the affirmative.
12. P O I N T No.5 :- Now, herein, the burden on complainant regarding to Whether said cheque amount was legally enforceable debt or not? Herein, P.W.1 has deposed as accused borrowed loan amount of sum of Rs.15,00,000/-, for the over due loan amount accused was issued the Ex.P.2. Herein there is no dispute regarding accused has borrowed the loan and further (SCCH-15) 11 CC.9928/2014 there is no dispute as such loan account still is in continued. Under these circumstances, this court has drawn the presumption under Section 118 and 139 of NI Act. Hence this court clearly come to conclusion that, accused person was issued the said Ex.P.2 to the complainant bank for discharge their liability and same is legally enforceable debt. Therefore, this court holds Point No.5 is answered in the affirmative.
13. P O I N T No. 6:- In view of answering points Nos.1 to 5 in affirmative, this Court proceeds to pass the following order.
ORDER Acting under Section 255(2) of Cr.P.C., the accused is hereby convicted for the offence punishable U/sec.138 of N.I.Act accordingly.
Hereby Accused is sentence to pay fine sum of Rs.15,67,848/- and directed accused to under go simple imprisonment for a period of 2 years.
Out of the fine amount, office is directed to release Rs.15,62,848/- to the complainant (SCCH-15) 12 CC.9928/2014 as compensation. In default of payment of fine, accused is ordered to undergo simple imprisonment for a period of 6 months.
The bail bond and the surety bond of the Offender is hereby stand cancelled. (I have personally typed on the my Lap-top, corrected by me and then pronounced by me in open court of this 4th day of September 2017) (RAJANNA SANKANNANAVAR) XXXVIII ACMM & XIII ASCJ, Bengaluru.
ANNEXURE List of witness examined on behalf of complainant:
PW1: Lakshmikantha R List of witness examined on behalf of Accused:
DW1: Shiva Prakash List of documents Marked on behalf of Complainant:
Ex.P.1 : Original GPA Ex.P.2 : Original Cheque Ex.P.3 : Return Memo Ex.P.4 : Officer copy of legal notice dtd.13.11.2013 Ex.P.5 : Postal receipt Ex.P.6 : Un-served postal cover Ex.P.6(a) : Notice in Ex.P.6 Ex.P.7 :Order copy in SGRV No.534-2014
List of documents Marked on behalf of Accused:
Ex.D.1 : Bank statement
(RAJANNA SANKANNANAVAR)
XXXVIII ACMM, Bangalore.