Bangalore District Court
Is A Company Incorporated Under vs Was Read Over And Explained Which Was on 16 March, 2020
IN THE COURT OF THE XXVIII ADDL. CHIEF
METROPOLITON MAGISTRATE NRUPATHUNGA ROAD,
BENGALURU CITY
Present:- Sri. ABDUL RAHIM HUSSAIN SHAIKH
B.Sc, B.Ed, LLB(Spl)
XXVIII A.C.M.M
Bengaluru City.
Dated this the 16 day of March, 2020
CC.No.27999/2017
JUDGMENT
1. Sl.No. of the case : C.C.No.21999/2017
2. The date of commence of Evidence: 11.09.2019
3. The date of Institution : 16.05.2016
4. Name of the Complainant :M/s Kapil Chits(K) Pvt Ltd Having its Register office at No.499, East End road, Jayanagar, 9th block, Bangalore-560 068.
Branch: Jayanagar Rep by Legal officer Sri. T. Prasad S/o T. Govindappa.
5. Name of the Accused : Mr. R. Gopinath R/at No.554, 5th cross, Channakeshavanagar, Hosaroad, Bangalore-68.
2 CC.No.27999/2017
6. The offence complained : U/s.138 of N.I. Act
7. Plea of the accused on his examination : Pleaded not guilty
8. Final Order : Accused is Convicted
9. Date of such order : 16.03.2020 JUDGMENT
1. This case has been registered against the accused on the basis of the complaint filed by the complainant u/s 200 of Cr.P.C for the offence punishable u/s 138 r/w 142 of N.I. Act.
2. The gist of the complainant's case is that :
Complainant is a Company incorporated under the Company's Act 1956 and they are in the business of promoting and conducting chits as per the provisions of the Chit Funds Act. Accused was the subscriber for a chit bearing No.BJM011 with Ticket No.08 for a chit value of Rs.3,00,000/- payable at Rs.10,000/- per month for a period of 30 months at Jayanagar Branch. The accused became the 3 CC.No.27999/2017 successful bidder in auction held on 27.11.2007 for a bid value of Rs.49,500/- and received the prize amount of Rs.2,50,500/- on 26.12.2007 after furnished the requisite surety. It is the case of the complainant that after obtaining the chit prized money the accused has failed to pay the monthly chit installments amount and on request for payment issued the cheque bearing No.066649 dated:22.02.2016 for Rs.3,04,000/- drawn on ICICI Bank, Bangalore -560 070 in favour of the complainant to clear the balance amount, which on presentation for encashment with his banker Union Bank of India, 4th block, Jayanagar, Bengaluru, the same was dishonoured for the reasons 'Account Closed' as per the bank memo dated 01.03.2016. The complainant issued a legal notice on 24.03.2016 to the accused by RPAD calling upon the accused to pay the cheque amount within 15 days from the date of receipt of the said notice but even after lapse of 15 4 CC.No.27999/2017 days from the date of receipt of the notice the accused has not paid the cheque amount nor replied to the said notice. Accordingly, the complainant filed the complaint against the accused for having committed an offence punishable u/s 138 of N.I. Act on 16.05.2016.
3. In pursuance of the summons, the accused has appeared through Counsel and got enlarged on bail by executing necessary documents. The copy of the complaint was furnished to the accused, as required under law. As there was sufficient material, plea was recorded against the accused on 06.08.2019 and explained to the accused in his vernacular, for which the accused pleaded not guilty and claims to be tried.
4. In order to prove the case, the Legal officer of the complainant Company Sri. T. Prasad, examined as PW1 and got marked Ex.P1 to 11. Then the statement u/s 313 Cr.P.C was recorded on 13.11.2019, wherein the incriminating evidence appeared against the 5 CC.No.27999/2017 accused was read over and explained which was denied by the accused. Accused examined himself as DW1 but not got marked any documents on his behalf.
5. The learned Counsel for complainant argued that complainant is a Company incorporated under the Company's Act 1956 and they are in the business of promoting and conducting chits as per the provisions of the Chit Funds Act. Accused was the subscriber for a chit bearing No.BJM011 with Ticket No.08 for a chit value of Rs.3,00,000/- payable at Rs.10,000/- per month for a period of 30 months at Jayanagar Branch. The accused became the successful bidder in auction held on 27.11.2007 for a bid value of Rs.49,500/- and received the prize amount of Rs.2,50,500/- on 26.12.2007 after furnished the requisite surety. It is the case of the complainant that after obtaining the chit prized money the accused has failed to pay the monthly chit installments amount and on request for payment issued the cheque bearing 6 CC.No.27999/2017 No.066649 dated:22.02.2016 for Rs.3,04,000/- drawn on ICICI Bank, Bangalore -560 070 in favour of the complainant to clear the balance amount, which on presentation for encashment with his banker Union Bank of India, 4th block, Jayanagar, Bengaluru, the same was dishonoured for the reasons 'Account Closed' as per the bank memo dated 01.03.2016. The complainant issued a legal notice on 24.03.2016 to the accused by RPAD calling upon the accused to pay the cheque amount within 15 days from the date of receipt of the said notice but even after lapse of 15 days from the date of receipt of the notice the accused has not paid the cheque amount nor replied to the said notice. Accordingly, the complainant filed the complaint against the accused for having committed an offence punishable u/s 138 of N.I. Act on 16.05.2016. Further it is contended that the presumption was in favour of the complainant which was not rebutted by the accused. It is contended by 7 CC.No.27999/2017 the complainant that the ingredients of Sec.138 and 142 are duly complied with and the accused is entitled for conviction.
6. The learned counsel for accused contending that accused was the subscriber of two chits for an amount of Rs.3,00,000/- each in 2006 with the complainant company. It is further case of the accused that he bid one of the chit in the year 2007 and obtained an amount of Rs.2,25,000/- and at that time the complainant company had obtained 3 blank signed cheques for security for the said amount. It is also the case of the complainant that he has repaid 19 installments through cheques for the said two chits and has also paid the installment amount to Yogesh and Suresh representative of the complainant company. It is further contended by the accused that in the year 2008 he has changed his name from R. Gopinath to A.R Harshavardan Kumar and had intimated the said fact to the complainant. Hence, the 8 CC.No.27999/2017 learned Counsel for accused prayed to acquit the accused.
7. Heard arguments and perused the material placed on record.
8. On the basis of the above facts, the following points arise for my consideration:
1.Whether the complainant proves that the accused towards discharge of legal recoverable debt issued cheque bearing No.066649 dated 22.02.2016 for an amount of Rs.3,04,000/- drawn on ICICI Bank Limited, Koramangala Branch, Bangalore in favour of complainant, on presentation for encashment it was returned as 'Account Closed' and in spite of receipt of legal notice, the accused failed to pay the cheque amount within the statutory period and thereby the accused has committed an offence punishable u/s 138 of N.I. Act?
2. What order?
9. My findings on the above points are as under : 9 CC.No.27999/2017
Point No.1: In the Affirmative Point No.2: As per final order, for the following:
REASONS
10. Point No.1:- In order to prove the case, the Legal Officer of the complainant Company Sri. T. Prasad filed affidavit by way of examination-in-chief and has reiterated the allegations made in the complaint on oath. In the evidence PW1 produced the documents which were marked Ex.P1 to P11. On perusal of document Ex.P1 it is found that it is the minutes of the meeting of the Board of Directors held on 15.12.2009 wherein it was resolved to authorize PW1 Mr. T. Prasad to file suits, execution and complaints to contest the cases on behalf of their company. Further PW1 has also produced Ex.P2 the authorization issued by the Managing Director to contest the case on behalf of the company pertaining to the chit funds scheme of the company. It is very pertinent to note that in the cross 10 CC.No.27999/2017 examination of PW1 it is contended by the accused counsel that PW1 had no authority to contest the case since the Managing Director K. Dayanandam who had duly authorized PW1 had no authority from the complainant company to issue such authorization. On perusal of Ex.P1 it is found that it is the minutes of the 49th Meeting the board of directors held on 15.12.2009 resolving to authorize PW1 to contest the case and accordingly Ex.P2 discloses that authorization is issued by the Managing Director in terms of the board resolution dated 15.12.2009 to the complainant to contest the cases on behalf of the complainant company including the chit funds scheme. It is pertinent to note that though accused disputed the authority of PW1 but has not placed any cogent evidence and relevant document in his evidence to disprove the authority of complainant/PW1. In view of the above reason and discussions the documents resolution Ex.P1 and authorization Ex.P2 remains 11 CC.No.27999/2017 undisputed regarding the authorization of PW1 to contest the case on behalf of the complainant company.
11. It is the evidence of PW1 that accused was the subscriber for a chit bearing No.BJM011 with Ticket No.08 for a chit value of Rs.3,00,000/- payable at Rs.10,000/- per month for a period of 30 months at Jayanagar Branch and after successful bidding in auction held on 27.11.2007 for a bid value of Rs.49,500/- received the prize amount of Rs.2,50,500/- on 26.12.2007 after furnished the requisite surety. Per contra, the accused who examined himself as DW1 deposed in his examination in chief that he had subscribed for two chits of Rs.3,00,000/- each with the complainant company and had obtained Rs.2,25,000/-. It is pertinent to note that in the cross examination of accused/DW1 he further admitted that he had obtained an amount of Rs.2,32,201/- through cheque No.847585 & executed 12 CC.No.27999/2017 the payment voucher receipt ExP4 with signature Ex.P4(a) on the said document and also executed the chit agreement Ex.P3 with the signature ExP3(a) on the said cheque. The relevant portion of the admission of DW1 regarding acceptance of Rs.2,32,201/- and execution of the chit agreement Ex.P3 and the payment receipt Ex.P4 is as follows:-
" F ¥ÀæPÀgÀtzÀ aÃnUÉ ¸ÀA§AzÀs¥ÀlÖAvÀºÀ ¥ÉæÃ¸ï ªÉÆvÀÛªÀ£ÀÄß ZÉPï £ÀA. 847585 ªÀÄÄSÁAvÀgÀ gÀÆ.2,32,201 gÀ£ÀÄß £Á£ÀÄ ¥ÀqÉzÀÄPÉÆArgÀÄvÉÛÃ£É JAzÀgÉ ¸Àj. ¸ÀzÀj ºÀtªÀ£ÀÄß ¥ÀqÉzÀÄPÉÆAqÀ £ÀAvÀgÀ £Á£ÀÄ ¤¦-, ºÀt ¸ÀAzÁAiÀÄ gÀ¹Ã¢UÉ ¸À» ªÀiÁrzÀÄÝ ¸ÁQëAiÀÄÄ vÀ£Àß ¸À»AiÀÄ£ÀÄß UÀÄgÀÄw¹zÀÄÝ CzÀ£ÀÄß ¤¦-4J JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. amï CVæêÉÄAmïUÉ ¸ÀºÀ £Á£ÀÄ ¸À» ªÀiÁrzÀÄÝ CzÀgÀ°è EzÀÝ ¸À»AiÀÄ£ÀÄß ¸ÁQëAiÀÄÄ UÀÄgÀÄw¹zÀÄÝ CzÀ£ÀÄß ¤¦-3J JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. ¤¦-3gÀ°è £ÀªÀÄÆ¢¹zÀ «¼Á£À £Á£Éà ¦gÁå¢UÉ ªÀiÁ»wAiÀÄ£ÀÄß ¤ÃrgÀÄvÉÛãÉ. "
In order to prove the said facts the complainant had produced the chit agreement Ex.P3 and prized amount payment voucher receipt Ex.P4 which clearly discloses that the accused had executed the said documents 13 CC.No.27999/2017 with his signatures Ex.P3(a) and 4(a). The said document corroborates the evidence of DW1 regarding acceptance of Rs.2,32,201/- from the complainant company by obtaining the membership for the chit group BJM01H Ticket No.08. It is equally important to note that the complainant has also produced Ex.P5 account statement and Ex.P6 the memo of calculation in his evidence and contended that the accused has stopped making payment after obtaining the prize amount and was in due of Rs.3,04,000/- for which accused had issued disputed cheque Ex.P7 bearing No.066649 dated:22.02.2016 for Rs.3,04,000/- drawn on ICICI Bank, Bangalore -560 070 in favour of the complainant, which on presentation for encashment with his banker Union Bank of India, 4th block, Jayanagar, Bengaluru, the same was dishonoured for the reasons 'Account Closed' as per the bank memo Ex.P8. On perusal of the said document it is crystal clear that in discharge of the legal debt accused had 14 CC.No.27999/2017 issued the cheque Ex.P7 with signature Ex.P7(a) on the said cheque for the amount of Rs.3,04,000/-. In the cross examination of DW1 the accused has admitted the said cheque Ex.P7 and the signature Ex.P7(a) belongs to him. On appreciating the cross examination of PW1 it is found that the accused counsel contended that accused had never issued the cheque in the year 2016 but he had issued the said cheque in the year 2007 to the complainant company for the security for the prize amount. Further it is contended by the accused counsel that the said blank cheque has been filled as per the convenience by the complainant to file a false compliant against the accused. The point that arises for determination is whether the cheque filled by the complainant issued to him for the discharge of legal debt gets in validates. On this point the Hon'ble Supreme Court has laid down the dictum which I would like to discuss in the reported ruling :
15 CC.No.27999/2017
2019 SAR 2446 (Criminal) 309 Supreme Court, ( Bir Singh v/s Mukesh Kumar).
(E) Negotiable Instruments Act (26 of 1881), S, 138, 139 - Dishonour of cheque - Presumption as to legally enforceable debt - Rebuttal - Onus to rebut presumption that cheque issued in discharge of debt or liability is on accused. (Para 36) (G)Negotiable Instruments Act, (26 of 1881), Ss.138, 139 - Presumption as to legally enforceable debt - Rebuttal - Signed blank cheque- If voluntarily presented to payee, towards payment, payee may fill up amount and other particulars and it in itself would not invalidate cheque - Onus would still be on accused to prove that cheque was not issued for discharge of debt or liability by adducing evidence.
(Para-38).
(H) Negotiable Instruments Act (26 of 1881), Ss, 138- Dishonour of cheque - Complainant can fill up 16 CC.No.27999/2017 amount or particulars in blank cheque. (Para 38).
(J)Negotiable Instrument Act 26 of 1881), Ss. 138, 139 - Dishonour of cheque - Absence of finding that cheque was not signed by accused or not voluntarily made over to payee- No evidence regarding circumstances in which blank signed cheque given to complainant - Cheque presumed to be filled in by complainant being payee in presence of accused, at his request or with his acquiescence- No change in amount, its date or name of payee- Subsequent filing in of an unfilled signed cheque is not alteration- Accused liable to be convicted. In the cross examination of PW1 the accused counsel has taken the contention that the contents of the cheque Ex.P7 has been filled as per the convenience of the complainant and by misusing the cheque handed over for different transaction the complainant has filed a false complaint against the accused. The relevant portion of cross examination of PW1 is as follows:- 17 CC.No.27999/2017
"F ¥ÀæPÀgÀtzÀ ªÀåªÀºÁgÀ ºÉÆgÀvÀÄ¥Àr¹ DgÉÆæ ªÀÄvÉÆÛAzÀÄ aÃnUÉ ¸ÀzÀ¸Àå£ÁVzÀÝ JAzÀgÉ ¸Àj. aÃn ºÀt ¥ÁªÀw¸ÀĪÀ ¸ÀªÀÄAiÀÄzÀ°è aÃn ¸ÀzÀ¸ÀåjAzÀ SÁ° ZÉPÀÌ£ÀÄß ¥ÀqÉzÀÄPÉƼÀî¯ÁUÀÄvÀÛzÉ JAzÀgÉ ¸ÀjAiÀÄ®è. ¤¦-7 ¥Àæ²ßvÀ ZÉPÀÌ£ÀÄß £ÀªÀÄä C£ÀÄPÀÆ®PÉÌ vÀPÀÌAvÉ £ÁªÉà ¨Àswð ªÀiÁrPÉÆArzÉÝÃªÉ JAzÀgÉ ¸ÀjAiÀÄ®è. DgÉÆævÀ ¨ÉÃgÉ aÃnUÉ ¸ÀA§A¢ü¹zÀAvÉ ¤ÃrzÀÝ ZÉPÀÌ£ÀÄß F ¥ÀæPÀgÀtzÀ°è zÀÄgÀÄ¥ÀAiÉÆÃUÀ ªÀiÁrPÉƼÀî¯ÁVzÉ JAzÀgÉ ¸ÀjAiÀÄ®è. "
This suggestion of the accused counsel makes it crystal clear that according to him the cheque of the accused that has been handed over for some other transaction had been misused by the complainant by filling the same as per the convenience. In this ruling the Hon'ble Supreme Court has clearly held that the burden is on the accused to rebut the presumption and cannot take the contention that the cheque has been filled as per the convenience by the complainant when the same has been issued for discharge of legal debt. In this ruling at para-36, 37, 38 & 40 the Hon'ble Supreme court has clearly laid down the dictum of law that the onus to 18 CC.No.27999/2017 rebut the presumption u/s 139 that the cheque has been issued in discharge of a debt or liability is on the accused and the fact that the cheque may be post dated does not absolve the drawer of the cheque of a penal consequences of sec.138 of the N.I Act.
12. On perusal of the said ruling the Hon'ble Supreme Court had made it very clear that if a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill of the amount and other particulars and it would not invalidate the cheque. The Onus would still be on the accused to prove that the cheque was not in discharge of debt or liability by adducing evidence. It is further held that even blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption u/s 139 of the Negotiable Instrument Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. It is also held that the provisions of Sec.20, 87 19 CC.No.27999/2017 and 139 makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. In view of the dictum of law laid down by the Hon'ble Supreme Court the contention of the accused that the cheque Ex.P7 has been filled as per their convenience and filed a false complaint cannot be considered and accepted. In the instant case accused had utterly failed to rebut the presumption that there exist no legal enforceable debt and they were not in due of payment of Rs.3,04,000/- mentioned in the cheque Ex.P7.
13. In this case the complainant has produced the bank memo Ex.P8 to show that the cheque has been returned with the endorsement 'account closed'. It is 20 CC.No.27999/2017 pertinent to note that though accused examined himself as DW1 he has never disclose the reason to the complainant at why his account was closed inspite of issuing the cheque for discharge of legal debt. It is important to note that merely issuing intimation to bank to close the account or making stop payment without the knowledge of the complainant does not absolve the liability of the accused. On this point I would like to refer the decision of the Hon'ble Supreme Court reported in:
(2003) 3 Supreme Court Cases 232 (Goaplast (P) Ltd, v/s Chico Ursula D' Souza and Anr) In this judgment the Hon'ble Supreme Court has laid down the dictum of law that the drawer issuing to a person of post dated cheque and then instructing the bank not to make payment consequently cheque bounce in such circumstances not withstanding the payment stopped prior to the due date of the cheque date 21 CC.No.27999/2017 held Sec.138 become applicable. Further it is held that if stoppage of payment before the due date of the cheque is allowed to take the transaction out of the purview of sec.138 of the Act, it will shake the confidence which cheque is otherwise intended to inspire regarding payment being available on due date This ruling is aptly applicable to the present fact and circumstances of the case since it is clearly held that without the knowledge of the complainant the accused cannot issue stop payment or close his account.
14. Complainant has produced the ruling reported by Hon'ble Supreme Court in :
AIR 2018 SUPREME COURT 3601 T.P Murugan (Dead) Lrs v/s Bojan Posa Nandhi Rep.Thr POA holder, T.P Murugan v. Bojan Negotiable Instruments Act (26 of 1881), S.138, S.139 Dishonour of cheque- Presumption as to enforceable debt- Cheques allegedly issued by 22 CC.No.27999/2017 accused towards repayment of debt-Defence of accused that 10 cheques issued towards repayment of loan bank in 1995- Behavior of accused in allegedly issued 10 blank cheques back in 1995 and never asking their return for 7 years, unnatural-Accused admitting his signature on cheques and pronote presumption under S.139 would operate against him - Complainant proving existence of legally enforceable debt and issuance of cheques towards discharge of debt-Conviction, proper.
This ruling is aptly applicable to the present case since the accused does not dispute his signature on the chit agreement Ex.P3 and payment receipt Ex.P4 and also his signature Ex.P7(a) on the disputed cheque. In the cross examination DW1 the complainant counsel had suggested the accused that as to why he has not sought for NOC even though he had made the entire payment and insisted the 23 CC.No.27999/2017 complainant to return the cheque which they had obtained for security in the year 2008. On appreciating the evidence regarding the said fact it is fund that the accused had admitted that he has not taken any legal action against the complainant company for not returning the cheque despite of payment and also admitted that he has not taken any legal action ageist the complainant for not returning the said cheques which he had issued for security. If the contention of the accused is believed that he had issued the cheques in the year 2007 for security and never asked for return of the cheque till 2016 when the cheques were presented for encashment seems unnatural. The above dictum is clearly discussed by the Hon'ble Supreme Court to note the behavior of the accused for not taking necessary legal action against the complainant for the period of more than 7 years after issuing of the cheques. It is found that the accused has not produced a single document to show 24 CC.No.27999/2017 that he had made the payment of the chit amount which he had received from the complainant company. In the absence and cogent and relevant document the contention of the accused that he has repaid the entire chit amount to the complainant company cannot be considered and accepted.
15. It is the evidence of PW1 that after receiving the memo from the bank regarding dishonour of cheque issued notice on 24.03.2016 through RPAD and the said notice has been served on the accused. In order to prove the said fact the complainant has produced the notice Ex.P9 and the postal receipt Ex.P9(a) and Ex.P9(b) DTDC Courier receipt along with the postal cover ExP10(a) for having send the notice through RPAD and also served through courier service. On perusal of the said document it is found that the notice has been served to the proper address but has returned as 'door locked'. At this juncture the entire burden was on the accused to prove that to what reason the door 25 CC.No.27999/2017 was locked and he was not responsible for the non service of the notice. In the instant case the accused/DW1 has deposed in his evidence that in the year 2008 he has changed his name from R. Gopinath to A.R Harshavardan Kumar and accordingly he has issued intimation to the complainant company. It is very pertinent to note that accused has not produced the single document before the court to show that his name has been changed from R.Gopinath to A.R Harshavardan Kumar and he has intimated the same to the , company. In view of the same the contention of the accused regarding the said fact cannot be taken into consideration. It is also important to note that in the cross examination of DW1/accused he admitted that the address that has been shown in the compliant had been given by him to the complainant company at the time of transaction. From this it is crystal clear that the complainant had issued the notice to the proper address of the accused who had intentionally had 26 CC.No.27999/2017 avoided the service of the notice which clearly established that the note has been serviced to the proper address of the accused .
16. On this point I would like to discuss the ruling reported in:
(2006) 6 Supreme Court Cases 456 (D. Vinod Shivappa v/s Nanda Belliappa) Criminal Appeals Nos. 1255 to 1261 of 2004, decided on May 25, 2006 Negotiable Instruments Act, 18810 Ss.138 proviso (b), (c ) and 142 Deemed service of notice sent by registered post - Presumption of receipt of notice- When arises- Fraudulent avoidance of notice - Nature and proof- Held, when drawer refuses to accept the notice or when he evades service of the notice by fraudulent or unscrupulous means so that the envelope containing the notice is returned with a false 27 CC.No.27999/2017 endorsement such as premises locked or addressee not available, court may presume receipt of the notice by the drawer- ."
In this ruling also the Hon'ble Supreme Court has clearly laid down the dictum of law that when the notice has been dispatched by the sender by post with correct address written thereon such notice can be deemed to have been served on sendee unless he proves that it was never actually served and that he was not responsible for the non service. In this case also the accused though taken the contention in the cross examination of PW1 that he has not received the notice but has not produced any cogent evidence and relevant document to prove that on the date of the service of the notice he was not residing in the address mentioned in the complaint, notice and the postal cover and there was no fault on his side in non service of the notice.
17. At this juncture on this point regarding service of 28 CC.No.27999/2017 notice I would also like to reproduce the principle laid down by the Hon'ble Apex Court of India in a decision reported in 2007 (3) Crimes 120 (SC) (C.C. Alavi Haji V/s Palapetty Muhammed & Anr), 2007 AIR SCW 3578 (C.C.Avavi Haji v/s Palapetty Muhammed & Anor).
On perusal the said ruling it is found that the Hon'ble Supreme Court held at para- 8 that :
Sec.138 of the act does not require that the notice should be given only by 'post', yet in a case where the sender as a dispatched the notice by post with correct address written on it, the principle incorporated in section 27 of the General Clause Act 1897 (for short GC Act) could profitably be imported in such a case. It was held that in this situation service of notice is deemed to have been affected on the sendee unless he proves that 29 CC.No.27999/2017 it was not really served and that he was not responsible for such non service. Further at para -10 it is held that : The requirement of clause (b) of the provisions of Sec.138 of the Act stands complied with and cause of action to file a complaint arises on the expiry of the period prescribed in clause (c) of the said proviso to Sec.138 for payment by the drawer of the cheque. Nevertheless it would be without prejudice to the right of the drawer to show that he had now knowledge that the notice are brought to his address.
This ruling is aptly applicable to the present case on the hand since the notice Ex.P9 is duly served to the proper address of the accused since accused had deliberately and intentionally has avoided the service of notice and the postal cover has been returned with the endorsement as 'door locked'. It is pertinent to 30 CC.No.27999/2017 note that if notice sent through RPAD by correctly addressing drawer of the cheque, mandatory requirement of issue of notice in terms of (b) of proviso to u/s 138 of N.I. Act stands complied with.
18. Non-initiating the legal action for alleged misutilization, non-intimating to his banker and non- issuance of reply are the strongest circumstances to draw inference against the accused. As noted supra it is settled that the presumption has to be rebutted by cogent proof and not by a bare explanation which is merely plausible. On appreciation of material on record in the considered opinion of this Court, the evidence placed on record by the accused is not sufficient to rebut presumption. Hence, it cannot be said that the accused has rebutted the presumption.
19. The word 'unless contrary is proved' is discussed by the Hon'ble Apex Court in a decision reported in 2011 Crl.L.J 4647 (SC). It is observed that "the accused is under the obligation to prove his case in 31 CC.No.27999/2017 trial by leading cogent evidence that there was no debt or liability to the satisfaction of the Court". 'Unless contrary is proved' means the presumption has to be rebutted by proof and not by a bare explanation which is mere plausible. The said fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that the reasonable man could act on the supposition that it exist. Therefore, unless explanation is supported by proof, the presumption created by the provisions cannot be said to be rebutted. On appreciation of material on record and in the light of the judgments discussed above it is clearly established that the accused has failed to discharge his obligation to rebut the presumption of enforceable debt -liability under section 139 of the N.I Act. Accordingly, I have no hesitation to arrive at the conclusion that accused has utterly failed to rebut the presumption.
32 CC.No.27999/2017
20. On appreciation of entire evidence, this Court is of the opinion that the accused has miserably failed to prove the fact that he has not issued cheque for discharge of legally enforceable debt. On the contrary, the complainant has proved that the accused has issued cheque/Ex.P7 for a sum of Rs.3,04,000/- towards discharge of legally enforceable debt and on presentation of the said cheque it was dishonored for the reasons 'Account closed'. Further it is proved by the complainant that after service of legal notice, the accused has not replied the notice and repaid the cheque amount. Hence, in the considered view of this Court, the complainant has complied the provisions of Sec.142 and Sec. 138 of N.I. Act. Hence, I answer the above point No.1 in the affirmative.
21. Point No.2:- From the material from record it appears that accused is 42 years . Considering the age and avocation of the accused, if the accused is sent to 33 CC.No.27999/2017 jail it will cause hardship to the accused and the family members. Having regard to the said facts and circumstance, prevailing rate of interest in the nationalized bank and litigation expenses I proceed to pass the following:
ORDER The accused is found guilty for the offence punishable u/s 138 of N.I. Act.
Acting u/s 255(2) of Cr.P.C. the accused is convicted and sentenced to pay fine of Rs.3,75,000/-, in default shall undergo simple imprisonment for four months.
Out of fine amount of Rs.3,75,000/- a sum of Rs.3,70,000/- is ordered to be paid to the complainant towards compensation u/s 357(3) of Cr.P.C. and the balance amount of Rs.5,000/- shall be remitted to the State.
The bail bond executed by the accused shall 34 CC.No.27999/2017 stand cancelled.
Supply free copy of the judgment to the accused. (Dictated to Stenographer directly on the Computer, taken print out corrected, signed by me and then pronounced in the open court this the 16th day of March, 2020) (ABDUL RAHIM HUSSAIN SHAIKH) XXVIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE Witnesses examined for the Complainant:-
PW1 : Sri. T. Prasad Witnesses examined for the accused:-
DW1 : Sri. R Gopinath Documents exhibited by the Complainant:-
Ex.P1 : Board resolution
Ex.P2 : Authorization letter
Ex.P3 : Chit agreement
Ex.P4 : Voucher
Ex.P5 : C/c of statement of account
Ex.P6 : Memo of calculation
Ex.P7 : Cheque
Ex.P7(a) : Signature of the accused
Ex.P8 : Bank memo
Ex.P9 : Office copy of the legal notice
35 CC.No.27999/2017
Ex.P9(a) : Postal receipt
Ex.P9(b) : Courier receipt
Ex.P10 : Legal notice found in the
returned postal cover
Ex.P10(a) : Cover
Ex.P11 : Compliant
Documents exhibited by the Accused:-
Nil XXVIII Addl. Chief Metropolitan Magistrate, Bengaluru.36 CC.No.27999/2017 37 CC.No.27999/2017 38 CC.No.27999/2017 39 CC.No.27999/2017 40 CC.No.27999/2017 41 CC.No.27999/2017
Judgment pronounced in the open Court vide separate order.
ORDER The accused is found guilty for the offence punishable u/s 138 of N.I. Act.
Acting u/s 255(2) of Cr.P.C. the accused is convicted and sentenced to pay fine of Rs.4,35,000/-, in default shall undergo simple imprisonment for four months.
Out of fine amount of Rs.3,75,000/- a sum of Rs.3,70,000/- is ordered to be paid to the complainant towards compensation u/s 357(3) of Cr.P.C. and the balance amount of Rs.5,000/- shall be remitted to the State.
The bail bond executed by the accused shall stand cancelled.
Supply free copy of the judgment to the accused.
XXVIII A.C.M.M, Bangaluru.