Bangalore District Court
M/S Agumbe Souhardha Credit vs Smt. Jayamma on 10 August, 2020
IN THE COURT OF THE XX ADDITIONAL SMALL CAUSES
JUDGE AND ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE AND M.A.C.T., BENGALURU (SCCH-22)
PRESENT : Smt.Shakunthala.S.,
B.A.., LL.B.
XX Addl. Small Causes Judge
and A.C.M.M., Bengaluru.
DATED : This the 10th Day of August 2020.
C.C. NO.5490/2018
Complainant - M/s Agumbe Souhardha Credit
Co-Operative Ltd,
No.18/27,14th Main,
4th Block, Nandini Layout,
Bengaluru-560096.
Rep. By its Secretory
Sri. Shivaprasad M.R.
(Rept: By Sri.Amshith Hegade, Advocate)
- Versus -
Accused - Smt. Jayamma.,
Aged About 50 Years.
W/o. Krishnappa,
#161, 6th Cross, 2nd main,
Bovipalya,
Mahalakshmi Layout,
Bangalore - 560086.
(Rept:By Sri.Prakasha Hegde.K., Advocate)
Dated of Institution : 23.11.2018
The offences complied : Under Sec.138 of the
off or proved Negotiable Instrument Act
SCCH-22 2 CC.No.5490/2018
Plea of the accused : Pleaded not guilty
Date of commencement : 30.11.2018
of recording evidence.
Final Order : Accused is Convicted
Date of such order : 10.08.2020
(SHAKUNTHALA.S.)
XX ADDL.S.C.J. & A.C.M.M.,
BENGALURU.
:: JUDGMENT ::
The Complainant filed this complaint against the accused under Section 200 of Cr.PC for the offence punishable under Section 138 of Negotiable Instrument Act.
2. The brief facts of the complainant case are as fallows;
The complainant is running a chit fund business. Accused is one of the subscriber for the chit and she subscribed for a chit value of Rs. 3,00,000/- for a period of 30 months, subscription installment payable at Rs.10,000/- per month. Towards the said chit she has paid a sum of Rs. 1,50,000/- including dividend and still there is an outstanding SCCH-22 3 CC.No.5490/2018 of Rs.1,50,000/- and penalty of Rs. 67,500/- with interest totally Rs. 2,17,500/-.
3. Accused is also guarantor to another subscriber namely Smt. Bhagya for chit value of Rs.3,00,000/- and towards the said chit and subscriber has paid a sum of Rs. 1,60,000/- and there is an outstanding of Rs.1,40,000/- and also liable to pay penalty of Rs.59,500/- with interest totally Rs.1,99,500/- and subsequently she became defaulter, in spite of repeated request and demands failed to comply.
4. In respect of the above said transaction accused issued a cheque bearing No. 678309 dated 28.08.2018 drawn on Canara Bank, Mahalakshmi Layout Branch, towards the payment of above both outstanding amount of Rs.4,17,000/-. On presentation of the cheque, it was dishonoured for the reason "funds insufficient". Thereafter got issued legal notice by RPAD and though served, but failed to comply which give rise a cause of action. Hence, committed an offence punishable under Section 138 of the N.I. Act.
5. In response to the summons, accused appeared through her counsel and enlarged on bail. The substance of accusation was recorded and read over, accused pleaded not guilty and claims to be tried. SCCH-22 4 CC.No.5490/2018
6. One Shivaprasad on behalf of the complainant got examined himself as PW1 being the authorized person and got marked 10 documents at Ex.P1 to Ex.P10. The statement of accused as required under Section 313 of Cr.P.C was recorded and read over to accused, for which she denied the incriminating materials as false and except raised her defence during cross-examination of PW.1 but not adduced any evidence.
7. Heard. Memo with citations cited by accused in Criminal appeal No.616/2006 between Pandurang Eknath Patil Vs Chandrakant Trimbak Deshmukh, Air 2007(NOC) 944 (KAR)=2007(2) AIR KAR R 211 between Ranjitha Balasubramanian and another Vs Shanthi Group and Other, AIR 2007 (NOC) 951 (KAR)=2007 (2) AIR KAR R 326 between Vishnudas G Bhutada Vs Vijaya Mahantesh, 1998 CRI. L.J 4066 between Sadanandan Bhadran Vs Madhuvan Sunil Kumar, 2007 CRI.L.2010 between L.P. Christiat Vs Ch.Suryanarayana and another, 2005 CRI.L.J 575 between Vuppala Venkata Nageshwara Rao Vs Tulluri Chit Funds Pvt Ltd and another, AIR 1967 Supreme Court 1118 between Jiwanlal Achariya Vs SCCH-22 5 CC.No.5490/2018 Rameshwarlal Agarwalla, 1995 CRI.L.J 560 between Shri Taher N Khambati Vs M/s. Vinayak Enterprises Secunderabad and others.
8. On perusal of oral as well as documentary evidence the points that arise for my determination are as follows:
1) Whether the complainant proves that Ex.P2 cheque has been issued by the accused towards discharge of legal liability and the same was dishonored on its presentation for the reason "funds insufficient" and further complied the mandatory provisions of Sec. 138 (a) to (c) of N.I.Act and further the complainant proves beyond doubt that the accused without having sufficient funds in his account, issued cheque towards discharge of his liability and failed to make good to the complainant after its dishonour within the stipulated period and thereby, committed an offence punishable under section 138 of N.I.Act?
2. What Order?
9. My answer to the above points are under :
Point No.1 - In the Affirmative.
Point No.2 - As per final order for the
following
:: REASONS ::
POINT No.1:-
SCCH-22 6 CC.No.5490/2018
10. Under Section 138 of the N.I Act the offence will complete only if the mandatory provisions of Sec. 138 (a) to (c) are complied, when the cheque was issued towards discharge of legal liability and it was dishonoured for " Insufficient Fund" in the credit of the accused.
11. In this connection, the complaint averments reveal that the accused owing a sum of Rs. 4,17,000/- and towards repayment of the same issued a cheque for Rs. 4,17,000/- drawn on Canara Bank, Mahalakshmi Layout Branch, Bangalore on 28.08.2018 and the said cheque was dishonoured for the reason funds insufficient when presented for realization.
12. The same has been reiterated by the complainant in his affidavit filed in lieu of his examination-in-chief and in support of oral evidence got marked board resolution at Ex.P1, Cheque at Ex.P2, signature of accused at Ex.P2(a), Endorsement at Ex.P3, Notice at Ex.P4, Postal receipt at Ex.P5, Postal cover at Ex.P6, Two chit agreements at Ex.P7 and Ex.P8, Two vouchers at Ex.P9 and Ex.P10.
13. On the contra in order to rebut the case of complainant accused raised her defence during cross-examination of PW.1 that he has no locustandi to depose and the cheque pertaining to Canara Bank but it was dishonoured for which memo issued not by Canara Bank but by SCCH-22 7 CC.No.5490/2018 DCC Bank and the notice given twice to accused but according to PW.1 the cheque was represented as per request of accused accordingly presented and was again bounced on 18.10.2018 and the signature in Ex.P7 and Ex.P8 varies so also in hand written words and the date in Ex.P2 which also differs and suggestion made to the extent that there was no relationship between accused and Bhagyamma i.e., mentioned in Ex.P7 and Ex.P8 and the signatures of accused have been forged. Accused issued cheque only for security which was got misused and filed this complaint which is false. The same have been suggested to PW.1 which have been specifically denied by PW.1. More over if at all Ex.P2 issued as a security, but it is a settled law that whether the cheque issued neither for security nor for discharge of liability makes no difference. Except these suggestions nothing has been elicited by the accused to disprove Ex.P1.
14. Now it is not in dispute that Ex.P2 cheque belonged to the accused and there is also no dispute regarding the signature of the accused found on Ex.P2 i.e., Ex.P2(a), when these facts are not in dispute without any extraneous evidence the court can draw presumption that the complainant is a due holder of the cheque. In this connection having regard to the facts and circumstances of the case SCCH-22 8 CC.No.5490/2018 which leads to draw presumption as contemplated under Section 139 of N.I.Act.
15. Now, it is expected from the accused whether she has taken any contra evidence from the mouth of PW.1. In support of her defence raised that the complainant got misused the cheque, except suggestions nothing has been elicited. The suggestions made it clearly establishes the circumstances under which the complainant holds the instrument but accused failed to rebut. Therefore no contra evidence, in order to over come or reach the points to cross the barrier of presumption as contemplated under Section 139 of N.I Act since, it is a statutory presumption, the court bound to presume that when there is no dispute regarding cheque relates to the accused and signature found on such cheque belonged to the accused and even accused not disputing neither the transaction nor issuance of cheque and signature and even no suggestions made to PW.1 except contended Ex.P2 issued as a security but in relation to which transaction she got issued the cheque not at all been proved as it is not the case of accused that she cleared the debt as agreed under chit agreement and except rising the contention that Ex.P2 issued as a security and the defence raised by accused is noting but a plausible explanation.
SCCH-22 9 CC.No.5490/2018
16. Further the accused not disputing the legal notice and though contended that the cheque was presented and notice issued twice but it is also settled law that the cheque can be presented any number of times for realization within stipulated period but so far as cause of action is concerned should be one cause of action. Moreover according to PW.1 Ex.P2 cheque was represented only on the request of accused. Further according to PW.1 Ex.D1 issued in respect of mistakes crept in the notice and the same has been brought to the notice of accused which has not been disputed nor it is the defence of accused that notice not received nor served upon her. Further though the complaint discloses that endorsement issued by Union Bank of India but in the existence of Ex.P3 which holds good and wrong mentioning of the name of Bank in the complaint in the existence and documentary evidence which will not take away the case of complainant and the crucks of the matter is only with regard to ingredients of Section 138 of N.I Act.
17. Though the learned counsel for accused during arguments vehemently argued that the debt under this complaint is a time barred debt, since the cheque was issued during 2016 accordingly memo with statement of account pertains to the accused got produced during the SCCH-22 10 CC.No.5490/2018 course of arguments but it was not marked and according to learned counsel the cheque bearing numbers 678308, 678310, 678311 have been cancelled which are with her. If so what made her to produce and mark the same as according to learned counsel the present cheque was also cancelled, but nothing has been produced to prove the same, hence there is no force in the arguments of the learned counsel.
18. Further under Section 138 of N.I Act offence will complete only if the mandatory provisions of Section 138 (a) to (e) N.I Act are complied, that the cheque was issued towards discharge of legal liability and it was dishonoured for Insufficient funds in the credit of the accused. Ex.P2 cheque dated 18.08.2018 and the said cheque returned for the reason funds insufficient as per endorsement at Ex.P3. The documents reveal that the cheque has been presented within 6 months from the date of issue and legal notice was issued on 29.10.2018, which is within time limit from the date of dishonour. The said notice was duly addressed to the accused and from that date within the stipulated period the complaint came to be filed.
19. There is no dispute in respect of her signature on Ex.P2 cheque itself is a proof to hold that Ex.P2 belonged to accused and at the time of presentation of the cheque there was no sufficient fund in the SCCH-22 11 CC.No.5490/2018 account. Therefore, I am of the view that the complainant complied all the mandatory provisions of Section of 138 (a) to (c) of N.I.Act.
20. Since the accused having failed to make good to the complainant within stipulated period, has committed an offence punishable under Section 138 of the N.I Act. There is no contra evidence available on record to over come Section 118 and 139 of N.I.Act. The citation cited by the learned counsel for accused and the principle laid down there in not aptly applicable to the present case on hand. Accordingly, I hold that the accused is found guilty of the offence punishable under Section 138 of N.I.Act, hence I answer point No.1 in the affirmative,
21. POINT No.2: In view of the above discussion, I proceed to pass the following:
:: ORDER ::
The accused is convicted for the offence punishable under section 138 of the N.I.Act by acting U/ sec. 255 (2) of Cr.P.C and she is sentenced to pay a fine of Rs.
4,30,000/ (Four Lakh Thirty Thousand). In default to pay fine, accused shall undergo simple imprisonment for a period of one year six months.
Further acting U/Sec. 357 (1) SCCH-22 12 CC.No.5490/2018
(b) of Cr.P.C on recovery of entire fine amount of Rs.4,30,000/ shall be paid to the complainant as compensation.
The bail bond and surety bond of the accused shall stand cancelled.
Supply a free copy of the judgment to the accused with due endorsement.
(Dictated to the stenographer, transcribed by her, corrected by me and then pronounced in the open court on this the 10th day of August 2020.) (SHAKUNTHALA.S) XX A.S.C.J. & A.C.M.M., Bengaluru.
:: ANNEXURE ::
List of witnesses examined on behalf of the complainant:
P.W.1 - Sri. Shivaprasad.M.R List of witnesses examined on behalf of the accused:
- Nil -
List of documents marked on behalf of the complainant:
Ex.P.1 - Board Resolution
Ex.P.2 - Cheque
Ex.P.2 a - Signature of accused on cheque
Ex.P.3 - Bank Endorsement
Ex.P.4 - Legal notice
Ex.P.5 - Postal Receipt
Ex.P.6 - Postal Acknowledgment
SCCH-22 13 CC.No.5490/2018
Ex.P.6 a - Copy of notice
Ex.P.7 & 8 - Two Chit Agreements
Ex.P.9 & 10 - Two Vouchers
List of documents marked on behalf of the accused:
Ex.D1 - Copy of notice
(SHAKUNTHALA.S.)
XX A.S.C.J. & A.C.M.M.,
BENGALURU.
SCCH-22 14 CC.No.5490/2018
10.08.2020
(Judgment pronounced in open court,
vide separate judgment).
OR D E R
The accused is convicted for the
offence punishable under section 138
of the N.I.Act by acting U/ sec. 255 (2)
of Cr.P.C and she is sentenced to pay
a fine of Rs. 4,30,000/ (Four Lakh
Thirty Thousand). In default to pay
fine, accused shall undergo simple
imprisonment for a period of one year
six months.
SCCH-22 15 CC.No.5490/2018
Further acting U/Sec. 357 (1)
(b) of Cr.P.C on recovery of entire
fine amount of Rs.4,30,000/ shall
be paid to the complainant as
compensation.
The bail bond and surety bond
of the accused shall stand cancelled.
Supply a free copy of the
judgment to the accused with due
endorsement.
(SHAKUNTHALA.S.)
XX A.S.C.J. & A.C.M.M.,
BENGALURU.