Bangalore District Court
Aged About 48 Years vs R/At No.128 on 26 June, 2020
1
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
DATED THIS THE 26th DAY OF JUNE, 2020
PRESENT
Sri. K. GURUPRASAD, B.A., LL.B (Spl.)
XIV ADDL. C.M.M., BENGALURU
CASE NO C.C. NO.59146/2018
Smt. Kalpana .K
W/o. C. Muninarayana
COMPLAINANT Aged about 48 years, R/at No.1490, AMC Road,
1st Main Road, Kadugondanahalli, Arabic College
Post, Bengaluru
Sri. K.N. Suresh
S/o. Gattu Narasimhappa,
Aged about 50 years,
ACCUSED
R/at No.128, 1st Main Road, 6th Cross, Rajeev
Gandhi Nagar, NTI Layout, 2nd Phase,
Sahakaranagar, Bengaluru - 560 097.
OFFENCE U/s.138 of Negotiable Instruments Act
PLEA OF THE
ACCUSED Pleaded not guilty
FINAL ORDER Accused is convicted
(K. GURUPRASAD)
XIV ADDL. C.M.M., BENGALURU
2
JUDGMENT
The present complaint is filed under Sec.200 Cr.PC for the offence punishable under Section 138 r/w Sec.141 of Negotiable Instruments Act.
2. It is the case of the complainant that, the accused had entered into an Agreement of Sale dtd.9.4.2018 and 11.4.2018 in favour of complainant and her family members for total consideration of Rs.3,44,50,000/- in respect of Sy. No.196 (4 acres 10 guntas), Sy. No.199 (7 acres 18 guntas), Sy. No.198 (1 acre 11 guntas), Sy. No. (1 acre 16 guntas), Sy. No.193 (4 acres 33 guntas), Sy. No.186 (5 acres 2 guntas and 4 acres 17 guntas) and Sy. No.201/P2 (extent of 3 acres) situated at Yaramaranahalli, Mandikal Hobli, Chikkaballapur Taluk. It is further claimed that the complainant and her family members have paid advance sale consideration of Rs.1,95,00,000/- by way of cash and RTGs to the accused on various dates. However, the accused had not disclosed at the time of entering into said Agreement of Sale that the accused had already entered into Sale Agreement with one Suresh Pothagunta who filed suit in O.S. No.141/2016 against the accused to execute sale deed in his favour and said suit came to be compromised. Therefore the complainant requested the accused to repay advance amount which was paid by the complainant and her 3 family members. Towards repayment of said amount, the accused issued cheque bearing No.308870 dtd.5.7.2018 for Rs.45 lakhs drawn on Karnataka Bank Ltd., Gokula branch, Bengaluru in favour of the complainant. When the complainant presented the said cheque for encashment to her banker i.e Syndicate Bank, K.G. Halli, Branch, Bengaluru for collection on 5.7.2018, said cheque came to be dishonoured on 21.7.2018 for the reason "funds insufficient". When the complainant got issued legal notice to the accused on 7.8.2018 to the accused by registered post calling upon the accused to pay the cheque amount, said notice was received by the accused on 8.8.2018. The accused has not complied with the said notice nor replied to the said notice and as such, the accused is guilty of the offence punishable under Section 138 of N.I. Act. Hence this complaint.
3. In order to prove her case, the complainant herself examined as CW.1 (PW.1) and got marked Ex.Nos.1 to 10 and closed complainant side of evidence. Thereafter, statement of the accused U/s.313 of Cr.PC was recorded. On the other hand, the accused has not led any oral and documentary evidence.
4. Heard both sides. Perused the complaint, evidence on record and court records.
5. The following points arise for my consideration and determination;
41) Whether the complainant proves that the accused has issued cheque in question in discharge of legally enforceable debt or liability as contended by her?
2) Whether the complainant further proves that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act?
3) Whether the complainant is entitled for the relief's as prayed in the complaint?
4) What Order?
6. The above points are answered as under;
Point No.1 to 3 : In affirmative,
Point No.4 : As per the final order,
for the following.......
REASONS
7. Point Nos. 1 and 2: Since these two points are inter linked and to avoid repetition they are taken together for discussion.
8. As regard to limitation to file this complaint, it is clear from Ex.P3 to P7 that when the complainant presented the cheque in question to her banker within three months from the date of said cheque, said cheque came to be dishonoured with 5 bank shara "funds insufficient" and that when the complainant got issued statutory notice U/s.138 of N.I. Act to the accused by registered post (within 30 days from the date of intimation of dishonour of said cheque), said notice came to be served on the accused. No doubt, the accused has seriously disputed service of statutory notice on him. However the accused has not disputed that the address of the accused shown in the statutory notice is correct. Therefore, as per Sec.27 of General Clauses Act, statutory presumption arises in favour of the complainant that statutory notice which was sent by registered post at correct address was served on the accused. However the accused has not entered the witness box to disown his signature on the postal acknowledgement or to depose on oath that no statutory notice was served on him. Therefore, the statutory presumption under Sec.27 of General Clauses Act and unrebutted and it can be concluded that the statutory notice is served on the accused. Hence, the present complaint which is filed after expiry of 15 days from the date of service of said notice and within 30 days thereafter is well within time.
9. As regard to legally enforceable debt or liability, in 2010 (11) SCC 441 - (Rangappa Vs Sri. Mohan), it is held that;
" The presumption mandated by Sec.139 of the Act includes a presumption that there exists a legally enforceable debt or liability. This is of course in the nature of a rebutable presumption and it is open to 6 the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, herein, there can be no doubt that there is an initial presumption which favours the complainant"..............."when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the presumption can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own".
10. If the facts and circumstances of this case are considered in light of above said principle of law, it is clear that the accused has not disputed during trial that the cheque in question is drawn on his bank account and that it bears his signatures. Therefore, statutory presumption arises U/s.139 of N.I. Act in favour of the complainant that the cheque in question is issued in discharge of debt or liability. The burden of rebutting the said presumption by probable defence is on the accused.
11. It is the case of the complainant that the accused had entered into Ex.Nos.1 and 2 Agreements of Sale with family members of the complainant i.e husband and son and agreed to sell his lands in Yaramaranahalli, Mandikal Hobli, 7 Chikkaballapur Taluk for total consideration of Rs.3,44,50,000/- and received advance sale consideration of Rs.1,95,00,000/- by way of cash and RTGs from the complainant and her family members, by suppressing the fact that the accused had already entered into previous Agreement of Sale with one Suresh Pothagunta and that said purchaser had filed suit for Specific Performance in O.S.No.141/2016 against the accused. It is further case of the complainant that when the complainant requested the accused to repay advance amount, the accused issued Ex.No.3-cheque, which came to be dishonoured. On the other hand, the accused has admitted the execution of Ex.Nos.1 and 2 Agreements of Sale and also admitted the execution of previous Agreement of Sale with Suresh Pothagunta and litigation between the accused and said Suresh Pothagunta. But the accused has denied receipt of advance Sale Consideration of Rs.1,95,00,000/- under Ex.Nos.1 and 2 Agreements of Sale. It is specific defence of the accused that the complainant and her family members were well aware of fact of execution of previous Agreement of Sale between the accused and Suresh Pothagunta and litigation between them, at the time of entering into Ex.Nos.1 and 2 Agreements of Sale. It is further defence of the accused that the complainant and her family members have filed suit in O.S. No.141/2018 against the accused and said Suresh Pothagunta and others before Sr. Civil Judge and JMFC., Chikkaballapur, for specific performance 8 of Ex.Nos.1 and 2 Agreements of Sale. It is specific defence of the accused that the accused has not voluntarily issued the cheques in question, but the complainant's family members have put life threat to accused and took four blank signed cheques from the accused, including the cheque in question under coercion and misused the cheque and got filed the present complaint against the accused and also filed two other complaints against accused.
12. On careful perusal of evidence on record, it is clear that defence of the accused is not probable nor does it inspire confidence of this court. It is because, the accused has not disclosed the date or month on or in which the accused was put to life threat and coercion to part with the cheques in question. The accused has also not disclosed the place where he was put to life threat and coercion to part with the cheques in question. No doubt, it is clear from the evidence on record that the accused has lodged police complaint against husband of complainant in 2018 to the Police Commissioner which was referred to CCB and that the husband of complainant had been to the office of CCB along with her son and father gave statement before the police in CCB office. However the accused has not disclosed the date or month on or in which such police complaint was lodged by the accused and what are the allegations made in said police complaint by the accused. The accused has also not produced copy of said police 9 complaint lodged by him to show that said police complaint has any connection or nexus with the cheques in question. Therefore in absence of material details regarding date and place of such coercion on the accused to part with cheques in question and in absence of documentary evidence, it is not safe to rely upon the defence of the accused that the complainant put life threat and coercion to the accused and took four blank signed cheques from the accused by way of coercion. Moreover, the accused has not entered into witness box to deny on oath the fact of voluntary issuance of cheques in question. The accused has not entered into witness box to depose that four blank signed cheques including cheque in question have been obtained from him by putting life threat and under coercion. Mere putting suggestions to PW.1 during cross-examination that four blank signed cheques including the cheque in question have been taken from the accused by putting life threat and under coercion, is not substitute for legal evidence, particularly when PW.1 has denied the said suggestion. In absence of material details and reliable evidence on record regarding alleged coercion, the accused cannot succeed merely on the basis of suggestions made during cross- examination of PW.1 who has denied the same.
13. Further, subsequent conduct of the accused also goes against defence of the accused that four blank signed cheques were taken from the accused under life threat and 10 coercion. It is clear from Ex.No.4-cheque return memo that Ex.No.3-cheque came to be returned dishonored on 21.7.2018. It is further clear from Ex.No.9 plaint in O.S.No.144/2018 and Ex.No.10-written statement in the said suit that complainant and her family members filed said suit for specific performance on 14.6.2018, on basis of Ex.Nos.1 and 2-Agreements of Sale against the accused and others and that the present accused who is Defendant No.1 in the said suit filed written statement on 31.7.2018. In other words, the accused filed Ex.No.10- written statement subsequent to dishonour of cheques in question. Therefore, if the cheque in question had been taken from accused under life threat and coercion, the accused would have pleaded regarding such life threat and coercion by complainant's family members in the written statement. However, even though the accused had earliest opportunity to plead regarding coercion in the written statement, the accused has not pleaded so in the written statement. On the other hand, the accused has admitted the plaint averments in the written statement and also came forward to execute sale deed in favour of the complainant and her family members, but contended that Suresh Pothagunta and others have obtained sale deed from him by force and without his consent. There is no allegation in the written statement that the cheques in question have taken from him under life threat and coercion by complainant's family members. Furthermore, it is clear from 11 Ex.Nos.5 to 7 that when the complainant got issued legal notice in this case by registered post calling upon the accused to pay the cheque amount, the said notice came to be served on the accused on 8.8.2018. The accused has not entered into witness box and denied and disowned his signature on Ex.No.7- postal acknowledgement. Therefore, it can be concluded that Ex.No.5 notice is served on the accused. However, even though Ex.No.5 notice is served on the accused , the accused has not got issued any reply notice to Ex.No.5-notice, denying his liability to pay the cheque amount and putting up his defence in such reply notice that the said cheque has been taken from him under life threat and coercion. Any prudent person in the place of accused under similar circumstances would have got issued reply notice to Ex.No.5 notice denying his liability to pay the cheque amount and putting up his defence. This inaction on the part of the accused to plead in the written statement in in O.S.No.144/2018 and to issue reply notice to Ex.No.5 notice, alleging that the cheques have been taken from him under life threat and coercion, raises serious doubt regarding the defence of the accused.
14. Furthermore, even though it is contended by the accused that four blank signed cheques have been taken from him under life threat and coercion, accused has not taken any steps to give stop payment instructions to his banker regarding said cheques. The accused has also not produced any 12 documentary evidence to show that he has lodged police complaint against the complainant's family members alleging that four blank signed cheques have been taken from him under life threat and coercion. No doubt, it is clear from the evidence on record that the accused has lodged police complaint against husband of the complainant which is referred to CCB. However, in absence of documentary evidence, it is not clear whether the said police complaint is with regard to life threat and coercion resulting in parting with four blank signed cheques. Therefore, this inaction on the part of the accused to give stop payment instruction to his banker and to take legal action against the complainant's family members raise serious doubt regarding the defence of the accused.
15. The accused has denied receipt of advance amount of Rs.1,95,00,000/- from complainant and her family members. In fact, counsel for the accused has put suggestion to that effect during cross-examination of PW.1 on page 8 of deposition. PW.1 has denied said suggestion. It is pertinent to note that though the accused has denied receipt of advance sale consideration of Rs.1,95,00,000/- in this case, it is clear from para 1 of Ex.No.10-written statement filed by the present accused in O.S.No.144/2018 that the accused who is Defendant No.1 in the said suit has admitted receipt of advance sale consideration of Rs.1,95,00,000/- from the complainant and her family members in the said written statement. This 13 admission by the present accused in the previous proceedings is relevant evidence in support of claim of the complainant in this case. Therefore, it can be concluded that the complainant and her family members have paid advance sale consideration of Rs.1,95,00,000/- to the accused under Ex.Nos.1 and 2 Agreements of Sale.
16. The accused has contended that the complainant and her family members were well aware at the time of entering into Ex.Nos.1 and 2 Agreements of Sale that the accused had entered into previous Agreement of Sale with one Suresh Pothagunta and that there was previous litigation in O.S. No.141/2016 between the accused and said Suresh Pothagunta. It is further contended that even though the complainant and her family members were well aware of said fact, they have entered into Ex.Nos.1 and 2 Agreements of Sale and that now, the complainant and her family members are falsely contending that the accused has suppressed said fact from the complainant and her family members at the time of entering into said Agreements of Sale.
17. No doubt, it is clear from the evidence on record that the complainant and her family members had knowledge of previous Agreement of Sale between the accused and Suresh Pothagunta and also well aware of the litigation in O.S.No.141/2016 between the accused and Suresh Pothagunta. However this knowledge of complainant and her family 14 members regarding previous Agreement of Sale and previous litigation in O.S.No.141/2016 will not dis-entitle the complainant from seeking refund of advance sale consideration from the accused in this complaint. It is because, it is clear from the recitals in Ex.Nos.1 and 2 Agreements of Sale that the accused being vendor under the said agreements was required to get no objection certificate from the concerned banks to get registration of sale deed within one month from the date of agreements of sale and is also required to make pody and sketch works at the revenue office regarding the said properties in question within three months. It is also clear from Ex.Nos.1 and 2 Agreements of Sale that if the accused failed to do so within the stipulated time limits, the complainant and her family members being purchasers have liberty to reject the proposal of absolute sale deed and to demand damages from the accused under the said agreements of sale. It is not the case of the accused that he has already got no objection certificate from the concerned banks and has also got completed pody and sketch work in the revenue office as agreed under Ex.Nos.1 and 2 Agreements of Sale. The question of payments of balance sale consideration arises only after completion of above said acts by the accused. Therefore, it is clear that the accused has failed to perform his part of contract under Ex.Nos.1 and 2 Agreements of Sale within stipulated time limit. Therefore, the complainant and her 15 family members who are purchasers under Ex.Nos.1 and 2 Agreements of Sale have liberty to reject the proposal of absolute sale and demand refund of advance sale consideration amount along with damages from the accused. The complainant and her family members have performed their part of contract under Ex.Nos.1 and 2 Agreements of Sale by paying more than half of total sale consideration and by issuing legal notice to the accused (calling upon the accused to execute the sale deed) and by filing suit for specific performance in O.S. No.141/2018. Therefore, merely because the complainant and her family members had knowledge of previous agreement of sale between the accused and Suresh Pothagunta and also regarding litigation in O.S. No.141/2018, the complainant and her family members are not dis-entitled to seek refund of advance sale consideration amount.
18. No doubt, the complainant and her family members have filed suit for specific performance of Ex.Nos.1 and 2 Agreements of Sale against the accused and others in O.S.No.141/2018 on the file of Sr. Civil Judge and JMFC., Chikkaballapur, while the complainant is seeking refund of advance sale consideration amount by pursuing this complaint on the basis of Ex. No.3-cheque. In other words, the complainant and her family members are simultaneously prosecuting two cases i.e one for relief of specific performance of Ex.Nos.1 and 2 Agreements of Sale in O.S. No.141/2018 and 16 another case i.e present complaint on the basis of cheque in question issued towards refund of advance sale consideration amount. However, both counsels have fairly admitted at the time of arguments that the suit for specific performance in O.S.No.141/2018 is still pending. Counsel for complainant has fairly submitted and undertook on behalf of the complainant that his party will withdraw the said suit for specific performance, if his party succeeds in this complaint. Moreover, there is no legal bar in simultaneously prosecuting two litigations in respect of same subject matter under Ex.Nos.1 and 2 Agreements of Sale. Therefore mere pendency of suit for specific performance in O.S. No.141/2018 on the file of Sr. Civil Judge and JMFC., Chikkaballapur is not legal hurdle in granting reliefs in the present complaint.
19. The accused has contended that the complainant by herself not contributed anything towards payment of advance sale consideration of Rs.1,95,00,000/- as admitted by PW.1 during cross-examination and as such the accused is not liable to pay any amount to the complainant towards refund of advance amount and as such there is no legally enforceable debt or liability to the extent of cheque amount of Rs.45 lakhs to the complainant. However, this contention of the accused cannot be accepted, because the complainant is one of the joint purchasers under Ex.Nos.1 and 2-Agreements of Sale and there is no specific apportionment of contributions made by 17 joint purchasers in advance amount of Rs.1,95,00,000/-. Moreover, the total cheques amount claimed in this complaint and two other complaints totally amounts to Rs.1,95,00,000/-. Therefore, it cannot be said that the accused is not liable to pay the cheque amount in this complaint only, because the complainant herself has not contributed towards advance amount.
20. Counsel for the accused has argued that there is no need for the accused to enter into witness box in each and every case and that to rebut the presumption U/s.139 of N.I. Act, it was open for the accused to rely on evidence led by him or accused could also rely on materials submitted by the complainant so as to raise probable defence. It was not necessary for the accused to come into witness box in support of his defence. In this regard, counsel for the accused has relied upon decision of Hon'ble Supreme Court in Basalingappa v. Mudibassapa.
21. No doubt, there is no dispute with regard to principle of law that it was not necessary for the accused in each and every case to come in witness box in support of his defence to rebut presumption U/s. 139 of N.I. Act and that it is open for the accused to rely upon the materials and evidence adduced by the complainant in such case. However, the question whether the materials and evidence adduced by the complainant is sufficient to raise probable defence of the accused and to rebut 18 statutory presumption U/s. 139 of N.I. Act is question of fact depending upon facts and circumstances of each case. In the present case on hand, on careful perusal of evidence on record, I am of view that the evidence on record is not sufficient to prove the defence of the accused and to rebut statutory presumption U/s. 139 of N.I. Act. It is specific defence of the accused that four blank signed cheques have been taken from him by complainant's family members under life threat and coercion. However, even though it is clear from the evidence on record that the accused has lodged police complaint against the husband of complainant, it is not clear whether said police complaint is lodged on the allegation of life threat and coercion and parting of said four blank signed cheques. The accused has not produced the said police complaint lodged by him to show that the said police complaint has any connection with parting of four blank signed cheques under life threat and coercion. Even the accused has not entered into witness box to depose that four blank signed cheques have been taken from him under life threat and coercion. In absence of documentary evidence of said police complaint and oral evidence of accused, it is not safe to acquit the accused only on the ground that some police complaint has been lodged by the accused. It is particularly so because this court is not aware of the contents of said police complaint lodged by the accused and regarding allegations made in such police complaint. Therefore, 19 arguments of counsel for the accused cannot be accepted and the decision relied upon by counsel for the accused is not helpful in this case.
22. Counsel for the accused has argued that the complainant and her family members have already filed O.S.No.144/2018 before Sr. Civil Judge & JMFC., Chikkaballapur for relief of Specific Performance of Ex.Nos.1 and 2 Agreements of Sale and as such the dispute in this case is to be determined by said Civil court. It is further argued that if any terms of the agreement of sale are violated by the accused, then remedy is elsewhere but not before this court, which is Criminal court. It is further argued that if the accused failed to perform his part of Agreement of Sale, remedy open to the complainant is to take appropriate steps against the accused before the competent Civil court. In this regard, counsel for the accused has relied upon decision in 2010 CRL. L.J. 1061 - (Venkatesh Bhat Vs Rohidas Shenoy).
23. I have carefully gone through the facts and principles in the above said decision. In the said decision, the complainant who was vendor had filed complaint U/s.200 Cr.PC on the ground that the accused who was purchaser had issued the cheque for balance sale consideration amount under Agreement of Sale. The accused in the said decision had denied and disputed the execution of Agreement of Sale and it was agreed under the Agreement that balance of sale 20 consideration should be paid at the time of execution of sale deed. In that context, the Hon'ble High Court has held that Criminal court should not give any finding on the execution of Agreement of Sale and that remedy open to the complainant is to take appropriate steps against the accused before the competent Civil court and that there is no legally enforceable debt. However, in the present case on hand, cheque in question has been issued towards refund of advance amount to the complainant who is purchaser. Moreover, the complainant has admitted the execution of Ex.Nos.1 and 2-Agreements of Sale. Therefore, even though there is no dispute with regard to principles of law laid down in the said decision, the said decision is not applicable to the present case on hand.
24. Even otherwise, in 2019 (4) SCC 767 - (Ripudaman Singh Vs Balkrishna), it is held by Hon'ble Supreme Court that though agreement to sell does not create any interest in immovable property, however it constitutes enforceable contract between the parties and as such any payment made under in pursuance such agreement is duly enforceable debt or liability for the purpose of Section 138 of N.I. Act. The principle of law laid down in this decision is aptly applicable to the present case on hand. Even though Ex.Nos.1 and 2- Agreements of Sale do not create any interest in the lands in question, any payment made in pursuance of said Agreements of Sale is duly enforceable debt or liability for purpose of 21 Sec.138 of N.I. Act. Therefore, the cheque in question issued towards refund of advance amount is towards discharge of liability which is enforceable for the purpose of Sec.138 of N.I. Act. Hence, the decision of Hon'ble High Court is not helpful to the accused in view of recent decision of Hon'ble Sumpre Court.
25. Counsel for the accused has argued that the complainant has not disclosed filing of O.S. No.141/2018 in this complaint. It is further argued that if the accused had issued the cheque in question towards refund of advance amount, the complainant and her family members would have reported the same to the court in O.S. No.141/2018. It is further argued that the complainant and her family members have not taken any endorsement or document regarding issuance of four cheques for refund of advance amount. It is further argued that the very fact that no cheque was issued in the name of one Hemanth who is also one of the purchasers in Ex.Nos.1 and 2- Agreements of Sale, shows that the cheques are not issued by the accused for the refund of advance amount. If the accused had voluntarily issued four cheques in favour of the complainant and her family members, he would have issued cheques to the extent of contribution made by each of the family members. It is further argued that the complainant has not produced any documentary evidence to show that accused issued four cheques only with regard to Ex.Nos.1 and 2- Agreements of Sale. Therefore, it is argued that above said 22 circumstances clearly indicate that the cheques in question are not voluntarily issued by the accused towards refund of advance amount but were forcibly taken under life threat.
26. However, above said arguments of counsel for the accused cannot be accepted because, the accused has utterly failed to prove his defence that he has not voluntarily handed over four cheques to the complainant and her family members, but four blank signed cheques have been taken from him under life threat and coercion. In absence of such proof of life threat and coercion, above said circumstances by themselves not sufficient to probabalize the defence of the accused.
27. In view of my above discussion, I am of considered opinion that the accused has utterly failed to prove or probabalize his defence and thereby to rebut statutory presumption in favour of the complainant. It clearly appears from the evidence on record that defence of the accused only an afterthought without any basis. Unless and until the accused rebuts the statutory presumption with convincing and cogent evidence, burden cannot be shifted on the complainant. As discussed above, the complainant has placed sufficient materials on record to establish her contention as put by the complainant. The evidence on record is sufficient to accept the case of the complainant that accused has issued cheque in question towards discharge of legally enforceable debt or liability and the complainant has proved all the requirements of 23 Sec.138 of N.I. Act, so as to constitute the offence against the accused. Therefore, Point Nos.1 & 2 are in affirmative and answered accordingly.
28. Point No.3: As discussed in connection with Point Nos.1 & 2, the complainant has proved her case as to commission of the offence punishable U/s.138 of N.I. Act by the accused. The punishment prescribed for the said offence is imprisonment for a period which may extend to two years or with fine. Considering the facts and circumstances of this case, nature, year of the transaction, nature of the instrument involved, provisions of Sec.117 of N.I. Act, cost of litigation and the rate of interest proposed by Hon'ble Supreme Court in 2012 (1) SCC 260 (R.Vijayan Vs Baby), etc., this court is of the considered view that it is just and desirable to impose fine of Rs.52,00,000/- and out of the said amount a sum of Rs.10,000/- has to be remitted to the State and the remaining amount of Rs.51,90,000/- is to be given to the complainant as compensation as provided U/s.357(1) of Cr.PC and accordingly Point No.3 is answered in Affirmative.
29. Point No.4: For the reasons discussed in connection with Point Nos.1 to 3 this court proceed to pass the following......
24ORDER Acting under Section 255(2) of Cr.PC accused is hereby convicted for the offence punishable under Section 138 of Negotiable Instruments Act. The accused shall pay a fine of Rs.52,00,000/- for the offence punishable U/s.138 of N.I. Act. In default of payment of fine amount, the accused shall under go simple imprisonment for a period of eight months.
By exercising the power conferred U/s.357(1) of Cr.PC., out of total fine amount of Rs.52,00,000/-, a sum of Rs.51,90,000/- is ordered to be paid to the complainant as compensation and Rs.10,000/- is ordered to be remitted to the State.
In view of limited functioning of courts under SOP on account of CORONAVIRUS lock down, the sentence is suspended (without application of accused) for a period of 30 days from this day and the bail bond of the accused are continued till expiry of said period of 30 days.
The cash security deposited by the accused is ordered to be continued till expiry of the appeal period.
Supply the free copy of this judgment to the accused forth with.
(Dictated to the stenographer, transcript thereof, computerized and print out taken by him is verified, corrected and then pronounced by me in open court on this the 26th Day of June, 2020) (K. GURUPRASAD) XIV A.C.M.M., Bengaluru 25 ANNEXURE Witnesses examined for the complainant:
CW.1 : Smt. Kalpana .K
Witnesses examined for the defence:
NIL
Documents marked for the complainant:
Ex.Nos.1 and 2 : Notarized copies of Agreement of Sale
Ex.No.3 : Cheque
Ex.No.4 : Bank endorsement
Ex.No.5 : Legal Notice
Ex.No.6 : Postal receipt
Ex.No.7 : Postal acknowledgement
Ex.No.8 : Bank statement
Ex.No.9 : Certified copy of O.S. No.144/2018
Ex.No.10 : Certified copy of written statement
Documents marked for the defence:
NIL
(K. GURUPRASAD)
XIV A.C.M.M., BENGALURU