Bangalore District Court
Indusind Bank Ltd vs Devaki Designs on 2 May, 2016
IN THE COURT OF THE XXVI ADDL.CHIEF
METROPOLITON MAGISTRATE, BANGALORE CITY
Dated this the 2nd day of May 2016
:PRESENT:
SMT.SHEILA B.M. M.Com. LL.M.
XXVI Addl.C.M.M., Bangalore City.
JUDGMENT U/S 355 OF Cr.P.C
Case No. : C.C No.16396/2015
Complainant : IndusInd Bank Ltd.
No.401, Prestige Terminus 1,
Old Airport Exit Road,
Bangalore - 560017
Rep. by its Officer and
Power of Attorney Holder
Shri Pavan Rajaram
(By Sri. MGC - Adv.)
Accused : Devaki Designs
Rep by its Authorized Signatory
& Partner
Mr. Vidyut Vasantrao Kulkarni
No.48, Hill View Buildings
Nayandahalli,
Mysore Road,
Bangalore- 560 039
(By Sri. CSP - Adv.)
Offence complained of : U/s 138 of N.I.Act.
Plea of the accused : Pleaded not guilty.
Final Order : Accused is convicted
Date of Order : 02.05.2016.
2 CC No. 16396 of 2015
The complainant has filed this complaint against the
Accused for the offence punishable u/s 138 of Negotiable
Instruments Act.
2. The Complainant has stated that accused had applied
for business Installment loan. After availing the said facility
towards part payment to debt accused has issued cheque dated
31.03.2015 for Rs. 2,73,027/- and assured that he will maintain
sufficient balance when the said cheque was presented it has
been dishonoured as "Exceeds Arrangement". The legal notice
was issued on 21.05.2015 which was served on the accused. It
is stated that the accused has failed and neglected the pay the
amount Hence the complaint.
3. On presentation of the complaint, cognizance and
statement of the Complainant was recorded and case was
ordered to register against the accused for the offence
punishable u/s 138 of Negotiable Instruments Act. Notice was
sent to the accused.
4. The accused appeared before the court through his
counsel and was enlarged on bail. Copies of the papers were
3 CC No. 16396 of 2015
furnished to them as required u/s 207 of Cr.P.C. The summons
and the substance of the accusation for the offence punishable
u/s 138 of Negotiable Instruments Act was read over and
explained to the accused. The accused pleaded not guilty and
claimed trial.
5. The Complainant has examined its Branch Manager as
PW1 and got marked Ex-P1 to P7. After closing the Complainant
side, the statement of the accused u/s 313 of Cr.P.C. was
recorded and the accused has denied the incriminating evidence
against him. The accused has not chosen lead his defense
evidence.
6. Heard arguments.
7. The points that arise for consideration are as under:
1) Whether the complainant proves that the
cheque bearing No. 467838 dated : 29.09.2014
for a sum of Rs.3,40,000/- drawn on State
Bank of Mysore, Bangalore returned unpaid
for the reason that the "Exceeds Arrangement"
in the account of the Accused?
2) Whether the accused proves that, cheque
bearing No. . 467838 dated : 29.09.2014 was
not issued in discharge of any legally
recoverable debt in favour of the Complainant
4 CC No. 16396 of 2015
3) What order ?
8. My findings on the above points are as under:
Point No.1: In the affirmative,
Point No.2: In the Negative,
Point No.3: As per the final order for the following:
REASONS
POINT NO.1:
9. PW1 the PAO holder of the Complainant has stated that
accused had applied for business Installment loan. After
availing the said facility towards part payment to debt accused
has issued cheque dated 31.03.2015 for Rs.2,73,027/- as per
Ex-P2. When the said cheque was presented it has been
dishonoured as "Exceeds Arrangement" as per Ex-P3. .
10. The accused has not cross-examined PW1. The entire
evidence of PW1 stands un-rebutted. In the absence of any
contrary evidence it can be inferred that the cheque issued by
the accused has been retuned for the reason "Exceeds
Arrangement". In view of the above discussion point no. 1 is
answered in affirmative.
5 CC No. 16396 of 2015
POINT NO.2
11. Once the cheque relates to the accused and his
signature on the said cheque is proved an initial presumption as
contemplated u/s. 138 of Negotiable Instruments Act has to be
raised by the court in favour of the Complainant. Sec. 139 of the
Negotiable Instrument Act contemplates that it shall be
presumed unless contrary is proved that the holder of the
cheque received the cheque of the nature referred to in the
Sec.138 for the discharge of the whole or in part any debt or
liability. The presumption referred to u/s 138 of Negotiable
Instruments Act is mandatory presumption and in general
presumption. But the accused is entitled to rebut the said
presumption. What is required to be established by the accused
in order to rebut the presumption is different from each case
under given circumstances. But the fact remains that mere
plausible explanation is not expected from the accused and it
must be more than plausible explanation by way of rebuttal
evidence. In other words the defence raised by way of rebuttal
evidence must be probable and capable of being accepted by the
court.
6 CC No. 16396 of 2015
11. The Complainant has been able to raise presumption
that the cheque issued by the accused has been returned for the
reason "Exceeds Arrangement". The accused has not cross-
examined the PW1. The entire evidence of PW1 stands un-
rebutted. In the instant case the drawer of the cheque has not
discharged the burden. No independent evidence has been
adduced to discharge the burden.
12. From the above discussion it could be held that the
accused has not raised a probable defense to rebut the statutory
presumption u/s. 138 of the N.I. Act and thus the presumption
u/s 118 and 139 of the N.I. Act are in favour of the Complainant.
Accordingly I answer point no. 2 in the Negative.
POINT No.3
13. In view of the discussion made above, I am of the
opinion that the Complainant has proved that the accused has
issued Ex-P2 cheque in its favour in discharge of legally
enforceable debt which came to be dishonoured for the reason
"Exceeds Arrangement" and accused has failed to pay back the
cheque amount in spite of receipt of the legal notice issued by
7 CC No. 16396 of 2015
the Complainant as contemplated u/s 138 of Negotiable
Instruments Act.
14. Now the aspect to be considered whether the accused
is entitled for the benefit Probation Offenders Act. In view of the
facts and circumstances of the case and in view of the fact that
the provision of 138 have been inserted to regulate growing
business, trade commerce and industrial activities of the country
strict liability to promote greater vigilance in financial matters
and to safeguard, faith of the creditor in drawer of the cheque
which is essential to the economic life of the developing country
like, India, I am of the view that the accused is not entitled for
the benefit of probation of offenders Act. Hence, the accused is
liable to be convicted for the offence punishable u/s 138 of
Negotiable Instruments Act. In the facts and circumstances I am
of the view that 9% interest on the balance cheque amount + Rs.
3000/- would meet ends of the justices.
ORDER
Acting under Sec.255(2) of Cr.PC, the accused is convicted for the offence punishable under Sec.138 of Negotiable Instruments Act and sentenced to pay a fine of Rs.3,00,000/- within one month from to-day. 8 CC No. 16396 of 2015
In default to pay the fine, the accused shall undergo simple imprisonment for a period of three months.
It is further ordered that, out of fine amount of Rs. 2,97,000/-shall be paid to the complainant as compensation under Sec.357 of Cr.P.C. The rest of the amount Rs.3,000/- is ordered to be adjusted to the State Exchequer.
The bail bonds of the accused shall stands cancelled automatically on payment of the entire amount.
Office is directed to supply a free copy of the judgment to the accused.
(Dictated to the Stenographer, transcribed and computerized by her, corrected and then pronounced by me in the open court on this the 2nd day May of 2016) (SHEILA B.M.) XXVI ACMM, Bangalore City.
ANNEXURE Witnesses examined for the Complainant:
PW.1 Pavan Rajaram Witness examined for the accused:
NIL 9 CC No. 16396 of 2015 List of Documents marked for the Complainant:
Ex. P1 Power of Attorney Ex. P2 Cheque.
Ex. P2(a) Signature of the accused on the cheque.
Ex. P3 Endorsement. Ex. P4 Notice. Ex. P5 RPAD receipt two in Number. Ex. P6 RPAD acknowledgement. Ex. P7 Returned postal cover (opened in open court)
Ex. P7(a) Notice inside the cover.
Ex. P8 Complainant.
List of Documents marked for the accused:
NIL XXVI ACMM, Bangalore.