Bangalore District Court
M/S. Sree Gowri Ganeshaa vs Sri. M.N. Nagaraj S/O. Ninge on 11 March, 2016
IN THE COURT OF XXI ADDL. CHIEF METROPOLITAN
MAGISTRATE, BANGALORE
DATED THIS THE 11th DAY OF MARCH, 2016
PRESENT: SMT. B.SHARADHA, B.Sc., LL.B
XXI ADDL. C.M.M., BANGALORE
C.C. No.14270/2010
COMPLAINANT:
M/s. SREE GOWRI GANESHAA
CHITS (P) LTD., Registered Office: #
307, 1st Floor, 7th Cross, 2nd Main,
Domlur Layout, Bangalore- 71.
Represented by its Managing
Director Sri. M. Lokesh Reddy.
V/s.
ACCUSED:
Sri. M.N. NAGARAJ S/o. Ninge
Gowda, Major, 4th A Cross, 1st A
Main, Byraveshwara Nagara,
Laggere, Bangalore- 560 058.
-: J U D G M E N T :-
This is the complaint filed under Section 200 Cr.P.C. for
the offence punishable Under Section 138 of N.I. Act.
2. The brief facts of the case of the complainant is that the
complainant is a company and carrying on chit business. The
accused has subscribed for the chit group GG-02, for
Rs.5,00,000/- payable in 25 months, GO-01 for Rs.3,00,000/-
payable in 30 installments, GO-02 for Rs.3,00,000/- payable in
30 installments. The accused being the successful bidder,
received the prize amount of Rs.3,00,000/- in chit group
GG-02, by forging the bid amount of Rs.2,00,000/-,
Rs.1,80,000/- in chit group GO-01, by forging the bid
amount of Rs.1,20,000/-,
2 C.C. No.14270/2010
Rs.1,80,000/- in chit group GO-02, by forging the bid
amount of Rs.1,20,000/-,from the complainant. Thereafter, the
accused became a chronic defaulter in payment of the chit
installments. Even after the completion of the duration of the
chit groups, the accused has not opted to discard chit liability.
On repeated requests and demand, for discharging his liability
the accused issued a cheque bearing No.719993 dated
25.03.2009 drawn on Vijaya Bank, Peenya, Bangalore for a sum
of Rs.13,13,976/-, out of which Rs.5,98,812/- towards the chit
group GG-02, Rs.3,09,822/- towards the chit group GO-01 and
Rs.4,05,342/- towards the chit group GO-02. When the said
cheque was presented for encashment, it came to be
dishonoured with the shara as "Insufficient Funds". Hence, legal
notice was issued to the accused calling upon him to pay the
cheque amount. Even after receiving the demand notice, the
accused failed to pay the cheque amount, within the stipulated
period and thereby committed an offence punishable U/s.138 of
NI Act.
3. After recording the sworn statement of the complainant
and by perusing the documents and hearing the arguments,
case was registered against the accused for an 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. Thereafter, the accused appeared before the court
through his counsel on the next date of hearing and filed bail
application U/s.436 of Cr.P.C. The accused was enlarged on
bail and plea was recorded. The accused pleaded not guilty and
claimed to be tried, when the substance of the accusation was
read over and explained to him. Hence, posted the case for
complainant evidence.
3 C.C. No.14270/2010
4. On behalf of the complainant company, it's Branch
Manager Sri. Ashok Sharma. J got examined himself as PW-1
and got marked Ex.P-1 to Ex.P-27 and closed his evidence.
Exc.P-28 to Ex.P-30 are the documents confronted during the
cross-examination of the DW-1. The statement of the accused
was recorded U/s.313 Cr.P.C. The accused in his 313
statement denied the incriminating evidence appearing against
him and submitted that he has got defence evidence.
5. The accused got examined himself as DW-1 and got
marked Ex.D-1 and also examined another witness by name R.
Vasudev as DW-2 and got marked Ex.D-2 & Ex.D-3 and closed
his evidence.
6. Heard the arguments of both the learned advocate for
the complainant and the accused and the case was posted for
judgment.
7. After going through the evidence, documents and the
records, the points that arise for my consideration are:-
1) Whether complainant proves that the
accused had issued a cheque bearing
No.719993 dated 25.03.2009 for a sum of
Rs.13,13,976/- drawn on Vijaya Bank, Peenya
Branch, Bangalore 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?
8. On going through the records, documentary evidence
and by hearing the arguments of both sides I proceed to answer
the above points 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:
4 C.C. No.14270/2010
REASONS
POINT NO.1:
9. The PW-1 claims that the complainant is the chit
company and carrying on chit business. The accused has
subscribed for the chit group GG-02, for Rs.5,00,000/- payable
in 25 months, GO-01 for Rs.3,00,000/- payable in 30
installments, GO-02 for Rs.3,00,000/- payable in 30
installments. The accused being the successful bidder, received
the prize amount of Rs.3,00,000/- in chit group GG-02, by
forging the bid amount of Rs.2,00,000/-,
Rs.1,80,000/- in chit group GO-01, by forging the bid
amount of Rs.1,20,000/-,
Rs.1,80,000/- in chit group GO-02, by forging the bid
amount of Rs.1,20,000/-,from the complainant. Thereafter, the
accused became a chronic defaulter in payment of the chit
installments. Even after the completion of the duration of the
chit groups, the accused has not opted to discard chit liability.
On repeated requests and demand, for discharging his liability
the accused issued a cheque bearing No.719993 dated
25.03.2009 drawn on Vijaya Bank, Peenya, Bangalore for a sum
of Rs.13,13,976/-, out of which Rs.5,98,812/- towards the chit
group GG-02, Rs.3,09,822/- towards the chit group GO-01 and
Rs.4,05,342/- towards the chit group GO-02. When the said
cheque was presented for encashment, it came to be
dishonoured with the shara as "Insufficient Funds". Hence, legal
notice was issued to the accused calling upon him to pay the
cheque amount. Even after receiving the demand notice, the
accused failed to pay the cheque amount, within the stipulated
period.
10. In support of the case of the complainant, it's Branch
Manager Sri. Ashok Sharma J got examined himself as PW-1
5 C.C. No.14270/2010
and got marked Ex.P-1 to Ex.P-27. Among them, Ex.P-8 to
Ex.P-13 are the certified copies of the orders passed by the
Joint Registrar of Chits and Deputy Registrar of Chits,
Bangalore District. The contents of the Ex.P-8 to Ex.P-13
remain undisputed during the cross-examination of the PW-1.
The accused who got examined himself as DW-1 did not
disputed the contents of Ex.P-8 to Ex.P-13. Hence, I find no
reasons to disbelieve the contents of Ex.P-8 to Ex.P-13.
Accordingly, I proceed to hold that the complainant started the
chit business in GO-01, GO-02 & GG-02 with due permission,
as per the procedure established under the law.
11. The complainant claims that the accused was a
subscriber to the chit group GO-01, GO-02 & GG-02, for chit
amount Rs.3,00,000/-, Rs.3,00,000/- and Rs.5,00,000/-
respectively. The accused has not disputed his membership in
the said chit groups. The accused in his examination-in-chief
itself clearly and specifically admitted that he was subscribing
to the chit group GO-01, GO-02 & GG-02. Hence, I find no
reason to disbelieve the case of the complainant in this regard.
12. The complainant claims that the accused became the
successful bidder of all the three chit groups and received the
prize amount of Rs.3,00,000/- in chit group GG-02 out of the
chit amount of Rs.5,00,000/- by forging the bid amount of
Rs.2,00,000/-, prize amount of Rs.1,80,000/- in chit group GO-
01 out of the chit amount of Rs.3,00,000/- by forging the bid
amount of Rs.1,20,000/- and prize amount of Rs.1,80,000/- in
chit group GO-02 out of the chit amount of Rs.3,00,000/- by
forging the bid amount of Rs.1,20,000/-. The accused in his
examination-in-chief admits that he has received the prize
amount by forging the bid amount of Rs.1,20,000/- in chit
6 C.C. No.14270/2010
group GO-01 and pleaded ignorance about the bid amount and
prize amount received from the complainant in chit group
GO-02 and GG-02.
13. If the evidence of the DW-1 is appreciated in totality,
along with the evidence of the PW-1 and the contents of the
documents, it clearly leads to the conclusion that the
complainant and the accused had chit transaction. The
complainant claims that the accused received the prize amount
in all the three chit groups, by forging the bid amount and the
complainant further claims that the accused became defaulter
in the payment of the chit installments, on receiving the prize
amount in the three chit groups, being the successful bidder in
all the three chit groups. The accused disputed the receipt of
prize amount. But, the accused clearly and specifically admits
that he was the successful bidder in all the three chit groups
and it is not in dispute. The accused claims that the owner of
the complainant chit company Sri. N. Lokesh Reddy was his
close friend and disputed the receipt of the entire prize amount
from the complainant as per the chit transaction by forgoing the
bid amount. The accused claims that the owner of the company
was his close friend and he requested the complainant company
on several occasions to pay the prize amount and at that time
the owner of the complainant company informed him to wait for
a while, till the payment of chit installments by the subscribers
of the chit group. Since the owner of the complainant company
was his friend, he has not initiated any action against him.
Since, 2006-07 the complainant has failed to pay the prize
amount. If the evidence of the DW-1 along with the suggestion
made to the PW-1 during his cross-examination is appreciated
in totality, it leads to the conclusion that the accused disputed
the passing of prize amount of the chit groups and disputed his
7 C.C. No.14270/2010
liability towards the complainant company to the extent of the
cheque amount. But, the accused in his cross-examination
dated 18.08.2015, admits that the cheque Ex.P-2 belongs to
him and it bears his signature as per Ex.P-2(a). When the
accused admits the cheque and his signature therein, there
exists statutory presumption U/s.118 & 139 of N.I. Act. The
accused shall rebut the presumption by placing rebuttal
evidence.
14. The accused claims that he has issued four blank
signed cheques along with four signed pronotes for security
purpose, while receiving the prize amount in the chit groups
GO-01 for Rs.3,00,000/-. The accused also claims that he has
also issued the documents at Ex.P-14 to Ex.P-19 in favour of
the complainant while receiving the prize amount in chit group
GO-01 for Rs.3,00,000/-. But, the recitals of Ex.P-14 to
Ex.P-19 shows that they are the documents executed while
receiving the prize amount in chit group GO-01, GG-02 &
GO-02 by forgoing the bid amount out of the chit amount. As
per the recitals in the Ex.P-17 to Ex.P-19 are the consideration
receipts executed by the accused on receiving the prize amount
by forgoing the bid amount. As per the recitals in the Ex.P-20
to Ex.P-22 they are the payment vouchers submitted by the
accused in favour of the complainant by acknowledging the
receipt of amount mentioned therein. The documents marked
as Ex.P-20 to Ex.P-22 shows that the said payments are made
in favour of the accused through the cheques and the
particulars of the cheques are mentioned therein.
15. The accused disputed the passing of consideration
claiming that the amount mentioned in Ex.P-17 to Ex.P-19 and
Ex.P-20 to Ex.P-22 have been drawn by the complainant
8 C.C. No.14270/2010
company itself through the open cheque and disputed the
passing of consideration. It is not in dispute that the cheques
referred in Ex.P-20 to Ex.P-22 are the open cheques and the
said cheques were not crossed cheques drawn in favour of the
accused. The PW-1 was subjected to the cross-examination in
this regard. The PW-1 in his cross-examination dated
04.05.2015 at page No.13 stated as under:
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16. The said evidence of the PW-1 leads to the conclusion
that the complainant company also used to issue open cheque
for the payment of the chit amount in favour of the successful
bidders of the chit group. The accused claims that through the
open cheque, the complainant company itself withdrawn the
prize amount and he has not received the prize amount from
the complainant. It is not the case of the accused that he has
9 C.C. No.14270/2010
paid the entire chit installments. Admittedly, the accused has
not initiated any legal action against the complainant for the
recovery of the prize amount. The accused in his cross-
examination dated 18.08.2015 clearly and specifically admits
that he has not lodged the complaint before the Registrar of
Chits or Assistant Registrar of Chits till date alleging that he
has not been paid with the prize amount, even after he became
the successful bidder of three chit groups.
17. The accused claims that he has issued four blank
signed cheques and four on demand pronotes in favour of the
complainant for security purpose. The contention of the
accused that he has issued his four blank signed cheques and
four on demand promissory notes in favour of the complainant
even though he has not been paid with prize amount in chit
group GO-02 & GG-02 cannot be accepted. The Ex.P-17 &
Ex.P-19 are the consideration receipts executed by the accused
by acknowledging the receipt of the prize amount in chit group
and GG-02 & GO-02. Ex.P-20 & Ex.P-22 are the payment
vouchers signed and submitted by the accused in connection
with the prize amount of chit group GG-02 & GO-02. When the
accused has admitted the execution of the documents at
Ex.P-17 & Ex.P-19, Ex.P-20 & Ex.P-22, the accused has to offer
satisfactory explanation as to why he has executed those
documents if he has not been paid with such amount. The
accused claims that the documents at Ex.P-20 to Ex.P-22 were
blank documents at the time of obtaining his signature. When
the accused has received the prize amount pertaining to only
one chit group GO-01, why he has executed three blank signed
documents Ex.P-20 to Ex.P-22, even though he has received the
prize amount in only one chit group has not been explained by
the accused. The accused in his cross-examination dated
10 C.C. No.14270/2010
18.08.2015, clearly and specifically admitted that he is working
as an LIC Agent since 2000. The accused also admits that he
will affix his signature to the documents only after reading and
understanding the contents of the documents. The accused
also admits that after the payment of the chit installments, the
complainant used to issue receipt for having paid the chit
installments. The accused has not produced any such
documents before the court to prove the payments made by him
towards the chit installments.
18. Admittedly, the duration of the chit group has already
been completed. As said earlier, the accused has not produced
any documents/receipts to prove the payment of entire chit
installments in all the three chit groups. The accused also not
initiated any legal action against the complainant for having
failed to pay the prize amount. Ex.P-28 to Ex.P-30 are the
documents confronted during the cross-examination of the
DW-1. Ex.P-28(a), Ex.P-29(a) & Ex.P-30(a) are the entries
which shows the payment made through the cheques in favour
of the accused. The Ex.P-20 to Ex.P-22 reflects the payment
made through the cheque in favour of the accused. The
complainant claims that the prize amount has been paid in
favour of the accused through the cheque number referred in
Ex.P-20 to Ex.P-22. The cheque numbers in Ex.P-20 to Ex.P-22
corroborates with the entries in the statement of accounts
referred at Ex.P-28(a), Ex.P-29(a) & Ex.P-30(a) and also the
Ex.P-20 to Ex.P-22 corroborates with the amount paid through
the said cheques. It is settled position of law that the mere bald
denial of the case of the complainant does not become defence,
unless it is proved. Mere plausible explanation is also not
sufficient to rebut the presumption.
11 C.C. No.14270/2010
19. The accused in support of his defence, got examined
Sri. R. Vasudev, Chief Manager, Corporation Bank, Domlur
Branch as DW-2 and got marked Ex.D-2 & Ex.D-3, the
statement of accounts and account opening form. The DW-2 in
his cross-examination admits that the amount of Rs.1,79,775/-
and Rs.66,775/- has been encashed through the open cheque
and also stated that the cheque amount in open cheque may be
encashed by anyone. The DW-2 clearly stated that they have
got no documents to say that the cheque amount referred in
Ex.P-20 to Ex.P-22 has been encashed by the accused alone.
The DW-2 admits that as per the contents of Ex.D-2, on
22.11.2002, 18.11.2003 & 29.04.2003, the accused has
received the amount mentioned therein. There is absolutely
nothing on record to hold that the accused has not been paid
with the amount referred in Ex.P-20 to Ex.P-22 through the
cheques referred therein. Hence, the contention of the accused
that he has not been paid with the prize amount referred n
Ex.P-20 to Ex.P-22 cannot be accepted.
20. The complainant relied upon Ex.P-4 to Ex.P-7 to prove
that the demand notice has been served to the accused calling
upon him to pay the cheque amount. The accused disputed the
service of demand notice Ex.P-4. The unserved RPAD cover
marked as Ex.P-7 has been returned with the postal shara as
"Incomplete address return to sender". Ex.P-23 & Ex.P-24 are
the documents relied upon by the complainant to prove that the
accused entered into chit agreement with the complainant. The
accused in his cross-examination dated 18.08.2015 admits that
he has executed the chit agreements Ex.P-23 & Ex.P-24 and
also identified his signature in Ex.P-23-chit agreement in
respect of the chit group GG-02 as Ex.P-23(a) and disputed his
signature in the chit agreements marked as Ex.P-23 in respect
12 C.C. No.14270/2010
of the chit group GO-01 and Ex.P-24. In the Ex.P-23, chit
agreement in respect of the chit group GG-02, the accused has
furnished his residential address as 1st A Main Road, 4th Cross,
Byraveshwara Nagara, Laggere, Bangalore. The accused has
nominated his wife as the nominee for the said chit group. The
address for which the demand notice Ex.P-4 has been sent to
the accused corroborates with the address furnished by the
accused in the admitted document Ex.P-23-chit agreement of
the chit group GG-02.
21. The accused got marked Ex.D-1 as the driving license
to prove his residential address and it is the document issued
on 11.06.2008. Ex.P-23-chit agreement in respect of the chit
group GG-02 is the document executed by the accused while
entering into an agreement with the complainant, by offering
himself as the subscriber to the chit group GG-02 at the time of
commencement of the chit transaction. The said GG-02 is a
chit transaction commenced during February 2003 as per the
contents of Ex.P-8-orders issued by the Joint Registrar of Chits.
Hence, I proceed to hold that the Ex.D-1 driving licence of the
accused is the subsequent document to the Ex.P-23-chit
agreement in respect of the chit group GG-02. It is not the case
of the accused that he has furnished his change of address
particulars to the complainant. When the accused has failed to
furnish the details of his change of address to the complainant,
even though he has entered into chit agreement with the
complainant, it leads to the inference that the accused has
failed to perform his part of duty and the accused cannot be
permitted to take the undue advantage of his own mistake.
Hence, I proceed to hold that the complainant by placing Ex.P-4
& Ex.P-6 proved and established that the accused has been
served with the demand notice Ex.P-4 sent through the UCP to
13 C.C. No.14270/2010
the address furnished by him to the complainant. Hence, the
contention of the accused that he has not been served with the
demand notice and the complainant intentionally sent the
demand notice to his wrong address for avoiding the service of
demand notice cannot be accepted.
22. The Ex.P-25 to Ex.P-27, statement of accounts shows
the outstanding dues to be paid by the accused towards the
complainant in connection with the chit transaction in three
chit groups GG-02, GO-01 & GO-02. The said statement of
accounts has been maintained by the complainant during their
regular course of transaction and it carries presumption, unless
the contrary is proved. During the cross-examination of the
PW-1, the accused has not seriously disputed the contents of
Ex.P-25 to Ex.P-27. Merely for the reason that the said
documents have been updated on 15.05.2015, the contents of
the documents cannot be disbelieved, unless the entries made
therein are proved as not correct. Hence, I proceed to hold that
the complainant by placing Ex.P-25 to Ex.P-27 proved the
outstanding dues of the accused towards the complainant.
From all these discussion, I proceed to hold that the accused
has failed to rebut the presumption that exists in favour of the
cheque Ex.P-2. Hence, I find no reason to disbelieve the case of
the complainant which is supported by Ex.P-1 to Ex.P-30.
23. In absence of any rebuttal evidence, in view of the
statutory presumption U/s.118 & 139 of NI Act that exists in
favour of Ex.P-2 and for the reasons discussed in previous
paragraphs, I find no reason to disbelieve the case of the
complainant which is supported by documentary evidence.
Hence, I proceed to answer point No.1 in Affirmative.
14 C.C. No.14270/2010
POINT NO.2:
24. The complainant claims that the accused committed
an offence punishable U/s.138 of NI Act stating that the cheque
Ex.P-2 has been issued by the accused to discharge the dues
and it came to be dishonoured by the banking authorities with
the shara as "Insufficient Funds" as per Ex.P-3. On receiving
the said intimation from the banking authorities as per Ex.P-3
in respect of Ex.P-2, got issued legal notice marked as Ex.P-4
and it has been sent to the accused through RPAD Ex.P-5 and
UPC endorsement Ex.P-6.
25. Thus, the complainant by placing Ex.P-1 to P-30
proved and established that the Ex.P-2 cheque has been
dishonoured by the banking authorities through Ex.P-3 and it
has been intimated to the accused through the Ex.P-4 by
demanding for the payment of the cheque amount. From all
these discussions and for the reasons discussed in previous
paragraphs, I proceed to hold that the accused has failed to
rebut the presumption that exists in favour of the cheques. The
complainant by placing Ex.P-1 to Ex.P-30 proved his case
against the accused and also I proceed to hold that the accused
has failed to make payment of the cheques 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.
POINT NO.3:
26. To this point, I made the following:
ORDER
The accused is convicted U/Sec.255(2) of Cr.P.C for the offence punishable U/Sec 138 of N.I. Act.
15 C.C. No.14270/2010The accused is sentenced to pay total fine amount of Rs.13,24,000/- (Rupees Thirteen Lakh and Twenty Four Thousand only). In default to undergo simple imprisonment for a period of ten months.
Out of the total fine amount of Rs.13,24,000/- a sum of Rs.13,14,000/- 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.
(Dictated to the stenographer directly on computer, typed by him, corrected and then pronounced by me in open court on this the 11th Day of March, 2016) (B.SHARADHA) XXI ADDL. C.M.M., BANGALORE.
ANNEXURE WITNESSES EXAMINED FOR THE COMPLAINANT:
PW-1 : Ashok Sharma J DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P-1 : Resolution
Ex.P-2 : Cheque
Ex.P-3 : Bank Endorsement
Ex.P-4 : Copy of Legal Notice
Ex.P-5 : Postal Receipt
Ex.P-6 : UCP
Ex.P-6 : Unserved Postal Cover
Ex.P-7 : Receipt
Ex.P-8 to 10: Orders
Ex.P-11 to 13: Certificates
Ex.P-14 to 16: Promissory Notes
Ex.P-17 to 19: Consideration Receipts
Ex.P-20 to 22: Payment Vouchers
Ex.P-23 & 24: Chit Agreements
16 C.C. No.14270/2010
Ex.P-25 to 27: Statement of Accounts Ex.P-28 to 30: Statement of Accounts WITNESSES EXAMINED FOR THE DEFENCE:
DW-1 : N.M. Nagaraj
DW-2 : R. Vasudev
DOCUMENTS MARKED FOR THE DEFENCE:
Ex.D-1 : Driving License
Ex.D-2 : Statement of Accounts
Ex.D-3 : Account Opening Form
(B.SHARADHA)
XXI ADDL. C.M.M., BANGALORE.