Bangalore District Court
Is Situated At Motakapalli Village vs Had Repaid A Sum Of Rs.14 Lakh As Part ... on 17 August, 2015
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CC.NO.4668/2014
IN THE COURT OF THE XV ADDL CHIEF METROPOLITAN MAGISTRATE:
AT; BANGALORE.
Dated this the 17th day of August 2015
Present: Sri.V.S.Pandit,,B.A.,LL B.,
XV Addl.C.M.M. : Bangalore.
Judgment U/s.355 of the Cr.P.C. 1973.
1.Sl.No.of the case CC.No.4668/2014
2.Name of the Complainant: M.Shankara Reddy,
S/o.Late. Aswathanarayana reddy,
40 years, R/at Motakapalli Village,
Gulur Post, Bagepalli Taluk,
Chickballapur District.
3.Name of the accused: Sri.Nila Maruthaiah,
S/o.Anjanappa,
42 years, R/at House No.61226,
SC.100922, 10.26, Vidyaranya
Nagar, SIYZON Puram, Ananth Pura
Town, Ananthapura District-515001,
Andhrapradesh.
(Also served at his Business Place)
Kalyani Chicken Center, Opp: HP
Petrol bunk, Ramanagara Main
Road, Ananthpura Town-515001,
Andhra Pradesh.
4.The offence complained of : U/s.138 of Negotiable Instruments
Act.
5.Plea of the accused: Pleaded not guilty.
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6.Final Order: Acting U/s.255(2) Cr.P.C., accused
is Convicted.
7.Date of final Order 17th day of August 2015.
1. The accused has been prosecuted by the complainant for the offence
punishable U/s.138 of Negotiable Instrument Act - 1881 (hereinafter referred as
NI Act for brevity)
2. Case of the complainant in brief are as under -
a. Complainant is carrying Poultry business under the name and style of
M/s.Kala Poultry Farm since 1999. The business establishment of the
complainant is situated at Motakapalli Village, Gulur post, Bagepalli Taluk,
Chickballapur District. Complainant is also having dealership of sale of feeds and
birds/chicks through Sneha feeds and Sri.Rohini Minerals Pvt.Ltd. Complainant
is having business at Bangalore, Hyderabad and all over Karnataka and Andhra
Pradesh.
b. Accused is a regular customer of the complainant. Accused had
purchasing chicks/broilers from the complainant on credit basis for the last two
years. Accused is running chicken Center in the name and style of M/s.Kalyani
Chicken Center, Opp: HP Petrol Bunk, Ramanagara Main Road, Ananthpura
Town, Andhra Pradesh. The complainant had supplied the broilers/chicks often
and often at the request of the accused. Since January 2013, accused had
purchased poultry amounting to Rs.21,50,000/-. Out of the said amount,
accused had repaid a sum of Rs.14 lakh as part payment. For balance amount of
Rs.7,50,000/-, accused got issued a cheque drawn on Axis Bank, Ananthapura
branch, Andhra Pradesh.
c. It is further case of the complainant that when the cheque was
presented for encashment through M/s.Dhanalakshmi Bank, Gandhinagar
branch, Bangalore-560 009, and it was dishonoured for the reason "FUNDS
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CC.NO.4668/2014
INSUFFICIENT". In this regard, bank had issued memo 20.11.2013. Thereafter,
complainant got issued legal notice on 11/12/2013, demanding for repayment of
the amount. The notice sent by RPAD to the residential address as well as
business address of the complainant. Though the accused had received the notice
neither reply was issued, nor demand was met with. This constrained to file the
complaint.
3. My learned Predecessor in the Office after taking cognizance issued
summons to the accused. In response to the summons, accused appeared and
was enlarged on bail. Plea for the offence was read over and explained to the
accused. Accused pleaded not guilty and pleads her innocence.
4. To sustain the charge leveled against the accused, complainant
examined herself as PW.1 and got examined PW.2 and documents at Ex.P.1 to 17(a)
got marked on behalf of the complainant.
5. After conclusion of the evidence of complainant, statement of the accused
U/s.313 Cr.P.C. was recorded. Accused had denied the evidence led by the
complainant.
6. Heard both sides.
7. The points that arise for my consideration are as under:-
1. Whether the complainant has proved that cheque
was issued by the accused for discharge of legally
enforceable debt, the same was returned unpaid for
the reason 'FUNDS INSUFFICIENT' and notice was not
complied. Hence accused committed an offence under
Sec.138 of N.I. Act ?
2. What Order ?
8. My findings on the above points are as follows:
Point No.1 in the Affirmative.
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CC.NO.4668/2014
Point No.2 as per final order,
for the following
REASONS
9. Point No.1 - It is the case of the complainant that broilers/chicks were
supplied to the accused amounting to Rs.21,50,000/-. A sum of Rs.14 lakh was
refunded by the accused. For balance amount of Rs.7,50,000/-, cheque was issued,
on presentation cheque was returned unpaid for the reason 'FUNDS
ILNSUFFICIENT'. Since notice was not complied by the accused, therefore complaint
is filed. Though accused did not lead any defence evidence, but on the basis of the
cross-examination directed to the complainant, one could make out the defence set
up by the accused, accused has totally denied the transaction itself. According to
him, he had no business transaction with the complainant, no cheque was issued, no
amount was due as alleged. Apart from that, it is contended that notice was not
properly served on the accused.
10. On perusal of the entire cross-examination directed to the accused,
much has been emphasized with regard to the legality of the transaction carried
out by the complainant. Further admissions were elicited with regard to the
documents between the complainant and accused with regard to the alleged
transaction. Apart from that, it is suggested to the complainant that he had
forged the signature of the accused. The said suggestion has been categorically
denied. It is not in dispute with regard to the cheque drawn from the account of
the accused. Simply the accused in the course of cross-examination has
contended that his signature has been forged in the impugned cheque. Except
suggesting to the complainant with regard to the forgery there is nothing on record
to arrive at a conclusion that signature of the accused is forged. Apart from that
the cheque in question was returned unpaid for the reason 'FUNDS
INSUFFICIENT'. As per Ex.P.2, had there was any forgery, the cheque might have
been returned unpaid for the reason "Difference in the Signature". Therefore in
the absence of the material on record to show that signature is not forged, Court
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CC.NO.4668/2014
has to presume that the signature is established by the complainant, further
when undisputedly cheque in question was drawn from the account of the
accused, Court has to presume that cheque is issued for discharge of liability.
However, the said presumption is rebuttable in nature and it is for the accused to
rebut the presumption by placing direct or circumstantial evidence. The onus is
that of ''Preponderance of Probabilities". The accused need not put-forth his
defence beyond all reasonable doubt and the said ratio has been categorically
relied on the decisions reported in the case of 2014(1) DCR 27, 2014(1) DCR 184,
2009(2) DCR 302 and 2008(2) DCR 462 .
11. What are the material placed by the accused to rebut the presumption is to
be seen. On perusal of the entire cross-examination directed to the complainant, it is
with regard to the non-filing of the Income Tax Returns for the income derived from
the business of poultry form. Further admissions were elicited with regard to the
non-production of the documents with regard to the running business of supply of
broiler/chicks in favour of the accused. Further admission was elicited with regard
to the non-production of the documents for payment received from the accused to
the extent of Rs.14 lakh. Further the admission is also elicited with regard to the
non-production of the documents for supply of chicks/broilers to the extent of
Rs.21,50,000/-. Apart from that, the documents produced by the complainant with
regard to the Register as per Ex.P.16 and bill as per Ex.P.17, though not conclusive
with regard to the supply of chicks/broilers to the extent of Rs.21,50,000/-, further
though these documents are not conclusive and legitimate with regard to the receipt
of Rs.14 lakh out of Rs.21,50,000/-. But it is the bounden duty on the part of the
accused to establish under what circumstance, cheque in question was issued in
favour of the complainant. On perusal of the entire cross-examination directed to the
complainant, no any suggestion was put to the witnesses with regard to the
circumstances under which the impugned cheque was issued in favour of the
complainant. If really, there is no any transaction between the complainant and the
accused as alleged what made the accused to issue cheque in favour of the
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CC.NO.4668/2014
complainant is not at all forthcoming in the defence version. Simply it is contended
that complainant has forged the signature unless the accused establishes that the
circumstances under which the cheque was issued and what made the complainant
to forge the signature, it is very difficulty to accept the defence version.
12. No doubt it is true that complainant has not produced any documents with
regard to the supply of broilers/chicks, further no records to show that
broilers/chicks worth Rs.21,50,000/- were supplied. But, it is the burden on the
part of the accused to prove that the cheque in question was issued for different
transaction and if there is no transaction between the complainant and the accused
as alleged, what prompted the accused to issue cheque in favour of the complainant
is not at all established by the defence.
13. Notices as per Ex.P.3 was issued in favour of the accused to his
residential address as well as business address. As per Ex.P.9 and 10, postal covers
were returned with an endorsement 'INTIMATION DELIVERED'. There is nothing on
record to show that accused is not residing in the addresses stated in Ex.P.9 and
Ex.P.10. Accused has not produced any material on record to show that he is not
residing in the address cited, under such circumstances, it is to be held that notice is
duly served on the accused. Apart from that as per Ex.P.15, postal authorities have
issued letter stated that notice sent by RPAD was delivered on 4.12.2013. There is
no any material elicited by way of admission from the mouth of the complainant, to
arrive at a conclusion that notice is not properly served. Under such circumstances,
even though the notice is issued, accused need not respond thereby inference has to
be drawn that defence set up by the accused is after though just to nullify the case of
the complainant.
14. Since the accused has not at all explained under which the cheque in
question was issued to the complainant, the cheque in question was returned unpaid
for the reason 'FUNDS INSUFFICIENT", and the notice though served not replied
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CC.NO.4668/2014
under such circumstances, Court has to presume that cheque in question was issued
for discharge of legally enforceable debt. Even though, there is no records produced
by the complainant, how one produce though not conclusive but since the accused
has not rebutted the presumption with regard to the circumstances under which the
cheque in question was issued, therefore decisions referred by the learned Counsel
for the accused reported in 2005(2) DCR 675, 2009(1) DCR 422, and 1997 Crl.L.J.
2559 are not applicable to the facts of the present case. Under such circumstances,
I answer Point No.1 in the affirmative.
15. Point No.2 - In the result, I proceed to pass the following
ORDER
Acting Under Sec.255(2) Cr.P.C., the accused is convicted for the offence punishable u/s.138 of the N.I.Act and accused sentenced to pay fine amount of Rs.7,60,000/- (Rupees Seven lakh Sixty thousand only.) Out of the said amount, an amount of Rs.7,50,000/- (Rupees Seven lakh fifty thousand only.) shall be paid to the complainant as compensation and balance amount of Rs.10,000/- shall go to State.
In default, he shall undergo SI for a period of six months. Copy of the judgment shall be furnished to the accused at free of cost.
(Dictated to the Stenographer, transcript thereof is computerised and printout taken by her is verified and then pronounced by me in Open Court on this the 17th day of August 2015.) (V.S.Pandit), XV Addl. CMM., Bangalore.
8CC.NO.4668/2014 ANNEXURE Witnesses examined for the Complainant:-
PW-1 Shankara Reddy, PW.2 N.S.Chelapathi.
Documents marked for the Complainant:-
Ex.P.1 Cheque,
Ex.P.1a Sign.,of accused,
Ex.P-2 Bank endorsement,
Ex.P.3 Office copy of the legal
Notice,
Ex.P.4to7 Postal receipts,
Ex.P.8 Postal A.D.Card,
Ex.P.9&10 Two postal covers, Ex.P.11 Licence, Ex.P.12 to 14 Three Electric bills, Ex.P.15 Letter from postal authority, Ex.P.16 Ledger book, Ex.P.17 Receipt, Ex.P.17a Relevant portion.
Witnesses examined For Defence:
Nil Documents marked for Defence:-
Nil XV Addl.CMM., Bangalore 9 CC.NO.4668/2014 10 CC.NO.4668/2014