Bangalore District Court
S.Suresh vs C.Srinath on 28 October, 2021
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 28th day of October - 2021
PRESENT: SRI. N.K.SALAMANTAPI, B.A., LL.B.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.2003/2019
Complainant : S.Suresh,
Proprietor of Sri Balaji VIP PVC Pipes,
No.36, 13th Main, 17th Division,
Vrushabahavathi Nagar,
Karekal, Kamakshipalya,
Bengaluru-79.
(Rep. by Sri.Somashekaraiah, Adv.)
V/S
Accused : C.Srinath,
S/o.Chowdappa,
Aged Major,
R/at No.37, 2nd Floor,
NHCS, Kaveri Nagar,
Near Swayam Prabha
Kalayana Mantapa, Kamakshipalya,
Bengaluru-79.
(Rep.by Sri.D.Srinivas Murthy, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Convicted.
DATE OF ORDER : 28.10.2021.
(N.K.SALAMANTAPI)
XXIII Addl.CMM., Bengaluru.
Judgment 2 C.C.No.2003/2019
JUDGMENT
The complainant has presented the instant complaint against the accused on 30.11.2018 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act for dishonour of cheque amount of Rs.6,00,000/-.
2. The brief facts of the complaint are as under:
The complainant submits that the accused was known to him since 15 years as the uncle of accused has given premises No.36, 13th Main, Vrushabahavathi Nagar, Karekal, Kamakshipalya, Bengaluru to the complainant on rent basis. The complainant is running the business of manufacture of Electrical Rigid Pvt Pipes under the name and style of Sri.VIP PVC Pipes.
The complainant has further contended that on 10.07.2018, the accused has approached the complainant for hand loan of Rs.6,00,000/- to meet his various financial commitments and assured to repay the same within one month. Accordingly, the complainant has arranged the said amount and informed to accused to come to his office premises and gave sum of Rs.6 lakhs to the accused on 18.07.2018 at 3.30 p.m. in the presence of one D.J.Babu, who is the friend of complainant. Immediately, after obtaining the amount, the accused has given signed cheque Judgment 3 C.C.No.2003/2019 drawn on Canara Bank, Basaveshwara Nagar Branch, Bengaluru to the complainant and requested him to present the said cheque after completion of agreed period of one month.
The complainant has further contended that after completion of one month, as per request of accused, he presented the cheque bearing No.411151 dated 18.08.2018 for encashment through his banker viz., IDBI Bank Ltd., Vijayanagar Branch, Bengaluru on 12.09.2018, the same came to be dishonoured with an endorsement dated 15.09.2018 stating "Funds Insufficient". Immediately, the complainant brought the said fact to the notice of accused, but he failed to make the repayment. Hence, he got issued legal notice to the accused through his counsel on 13.10.2018 by way of R.P.A.D., and the same was duly served upon accused on 16.10.2018. Despite, the accused has neither paid the cheque amount nor replied the notice. Thus, he committed an offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
3. After presentation of the complaint before this court, my predecessor in office took the cognizance and got registered the case and recorded the sworn statement of the complainant and got marked Ex.P1 to P5. Thereafter, since the complainant made Judgment 4 C.C.No.2003/2019 out prima-facie case to proceed against the accused, the instant criminal case has been registered and process was issued to the accused.
4. In response to the summons, the accused appeared before this court and obtained the bail. After receipt of the copy of the complaint as required, the accusation read over and explained to the accused, he denied the same and claimed to have the defence. Thereafter, the sworn statement of complainant treated as complainant evidence. The accused has appeared through his counsel, he choosen to file application required under Section 145(2) of Negotiable Instruments Act, despite given sufficient opportunities to cross-examine the PW.1 and to lead his defence evidence, the accused did not choosen to do so. The statement of accused under Section 313 of Cr.P.C. was ready for recording, but the accused continuously remained absent and he did not utilize the opportunity available under Section 313 of Cr.P.C.
5. I have heard the arguments. The complainant counsel has also submitted his detailed written arguments.
6. On going through the rival contentions, based on the substantial evidence available on record, the following points would arise for determination:
Judgment 5 C.C.No.2003/2019
1) Whether the complainant proves beyond the
reasonable doubt that the accused got issued Ex.P1-cheque bearing No.411151 to the complainant towards discharge of legally recoverable debt or liability and the said cheque was dishonoured, thereby the accused has committed an offence punishable under Section 138 of Negotiable Instrument Act?
2) What Order?
7. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Affirmative Point No.2 : As per final order, for the following:
REASONS
8. POINT No.1: The complainant has filed this complaint for the offence punishable under Section 138 of Negotiable Instruments Act against the accused and prayed to punish the accused for the offence punishable under Section 138 of Negotiable Instruments Act.
9. To attract Section 138 of Negotiable Instruments Act, complainant should prove that; (1) the accused has issued a cheque for discharge of legally recoverable debt. (2) The same was presented through his banker. (3) It was dishonoured on presentation. (4) The notice in terms of provisions was served on the accused and (5) Despite service of notice neither any Judgment 6 C.C.No.2003/2019 payment was made nor other obligations, if any were complied within 15 days from the date of receipt of notice.
10. In order to prove his case, the complainant filed his affidavit and himself examined as PW.1, wherein, he has reiterated the averments made in the complaint. In support of his contention, he relied upon the documents at Exs.P1 to P5. Among them, cheque bearing No.411151 issued by the accused for sum of Rs.6,00,000/- dated 18.08.2018, drawn on Canara Bank, Basaveshwaranagar Branch, Bengaluru is marked as Ex.P1. The signature of accused is marked as Ex.P1(a). Ex.P2 is the Bank Endorsement issued by IDBI Bank Ltd., the contents of Ex.P2 discloses that the cheque bearing No.411151 drawn for Rs.6,00,000/- was dishonoured for the reasons "Funds Insufficient". Ex.P3 is the Legal Notice dated 13.10.2018, the recitals of Ex.P3 discloses that the complainant has issued this notice to the accused through his counsel. By issuing this notice, complainant called upon the accused to repay the cheque amount of Rs.6,00,000/- within 15 days from the date of receipt of notice. Ex.P4 is the Postal receipt and Ex.P5 is the postal acknowledgment card.
Section 118 (a) of Negotiable Instruments Act provides that:
Judgment 7 C.C.No.2003/2019 "Until the contrary is proved, the following presumptions shall be made: (a) of consideration; that every negotiable instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration." Section 139 of Negotiable Instruments Act provides that:
"It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability."
11. In order to rebut the presumption available under Sections 118(a) and 139 of Negotiable Instruments Act, the accused, during the recording of plea, he denied the very allegations made against him and filed application under Section 145(2) of Negotiable Instruments Act seeking permission to put forth his defence and cross-examine the PW.1. This court has permitted to the accused to cross examine the PW.1 and to lead his defence evidence, but he did not do so. When the statement of accused under Section 313 of Cr.P.C. was prepared for recording, he continuously remained absent and he did not utilize the opportunity available under Section 313 of Cr.P.C. Hence, his side defence evidence is taken as nil.
Judgment 8 C.C.No.2003/2019
12. It is pertinent to note that except bald denial while recording plea, the accused has not taken any specific defence, therefore, it is statutory presumption raised in favour of the complainant that the Ex.P1 cheque was issued by the accused for the payment of legally recoverable debt only. On going through the materials available on record, which relied by the complainant it prima-facie made out that after complying the mandatory requirement under Section 138 of Negotiable Instrument Act, the complainant has presented the case against the accused.
13. In the case on hand, the complainant by producing documentary evidence as well as oral evidence has proved his case beyond reasonable doubt. The accused has not taken any probable defence to rebut the case of the complainant, thereby, the accused has failed to disprove the very case of the complainant. Mere taking bald defence is not enough to suspect the genuineness of claim of the complainant. Therefore, there is no material on record to disbelieve the claim of the complainant.
14. On overall appraisal of the materials available on record, it is the consider opinion of this court that the accused has failed to discharge initial burden to rebut the statutory presumption as well as the facts and circumstances placed by the complainant in the present case. Thereby, the complainant has proved the guilt of Judgment 9 C.C.No.2003/2019 the accused that the accused is liable to pay the amount covered under the Ex.P1-cheque. Therefore, keeping in the mind of the object of introduction of Negotiable Instruments Act, it appears this court, it is a fit case to convict the accused.
15. Therefore, from the perusal of oral and documentary evidence placed on record it reveals that complainant has made out his case and accused has failed to rebut the presumptions arisen in favour of complainant. Thus complainant has proved that accused has committed an offence punishable under Section 138 of Negotiable Instruments Act beyond all reasonable doubt. Hence, in view of the above said reasons, I hold point No.1 in the Affirmative.
16. Point No.2: In view of my findings on point No.1, I proceed to pass the following:
ORDER Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay total fine of Rs.6,20,000/-.
Out of the said fine amount, sum of Rs.6,18,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C.
Judgment 10 C.C.No.2003/2019 Remaining amount of Rs.2,000/- shall be payable to the state as fine amount.
In default of payment of fine amount, the accused shall under go simple imprisonment for 06 (Six) Months.
The bail bond and cash security/surety bond of the accused stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 28 th day of October - 2021) (N.K.SALAMANTAPI) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : S.Suresh List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque Ex.P1(a) : Signature of accused Ex.P2 : Bank endorsement Ex.P3 : Office copy of legal notice Ex.P4 : Postal receipt Ex.P5 : Postal acknowledgment card Judgment 11 C.C.No.2003/2019
List of Witnesses examined on behalf of the defence:
- None -
List of Exhibits marked on behalf of defence:
- Nil -
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 12 C.C.No.2003/2019 28.10.2021. Comp - Accd - For Judgment
Judgment pronounced in the open court vide separate order.
***** ORDER Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay total fine of Rs.6,20,000/-.
Out of the said fine amount, sum of Rs.6,18,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount of Rs.2,000/- shall be payable to the state as fine amount.
In default of payment of fine amount, the accused shall under go simple imprisonment for 06 (Six) Months.
The bail bond and cash security/surety bond of the accused stands cancelled.
Judgment 13 C.C.No.2003/2019 The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 14 C.C.No.2003/2019 Later, the convictee's counsel filed application Under Section 389(3) of Cr.P.C seeking for suspend the sentence for the reasons stated in the application.
Heard.
In the present case, the judgment was pronounced and convicted the accused. In view of the same, the convictee counsel has prayed that to suspend the sentence by appeal period. For the reasons stated in the application, for the limited period of prefer appeal only, the application filed by the accused counsel under Section 389(3) of Cr.P.C. is hereby partly allowed and sentence is suspended till appeal period only.
The convictee is hereby directed to execute bond for fine amount of Rs.6,20,000/-.
XXIII ACMM, Bengaluru.