Bangalore District Court
S/O.Late P.Narasimha Pai vs Apologized For His Mis-Deed And Pleaded ... on 30 October, 2015
IN THE COURT OF XIII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BANGALORE.
Present: Smt.C.G Vishalakshi, B.A., L.L.B.,
XIII A.C.M.M Bangalore.
C.C. NO.4272/2005
Dated: This the 30th day of October 2015
Name of the Sri.P.Dayananda Pai,
complainant S/o.Late P.Narasimha Pai,
Major,
No.85/1, 1st Floor,
K.H Road,
Bangalore-560 027.
Name of the accused Sri.B.Jahir Ahmed,
S/o.late Haji buden Baig,
Major,
No.84/5, 4th Cross,
8th Main, Tilak Nagar,
Bangalore-560 041.
Offence U/s.138 of Negotiable
Instruments Act.
Plea of the accused Pleaded not guilty
Final order Convicted
****************
JUDGEMENT
This complaint is filed against the accused U/s.200 of Cr.P.C. for the offence punishable U/s.138 of N.I Act.
.
2. The gist of the complaint is as follows; 2 C.C.No.4272/2005 The complainant submits that, he was looking to purchase landed property. On coming to know about the same, the accused along with one agent Mohan K Hiregoudar approached the complainant claiming that he has prime landed properties in his possession suiting the complainant requirement and offered the same for sale. Since the said land were satisfied the need of the complainant, the complainant had agreed for proposal of the purchase of the land. The accused had represented that he is the GPA holder of the actual owners. Believing the words of the accused, the complainant agreed to purchase the lands. Accordingly, the complainant and the accused entered into an agreement for sale on 4.12.2002 and as per the demand of the accused, the complainant has paid advance amount of Rs.10,00,000/- vide pay order of which, the accused, has accepted and endorsed in the said agreement. Thereafter, the complainant came to know that the accused has produced forged GPA and the actual owners of the land have not signed the said Power of Attorney by appointing the accused as their Power of Attorney. When the complainant confronted the accused with this issue, the 3 C.C.No.4272/2005 accused apologized for his mis-deed and pleaded with the complainant not to initiate any legal action and promised to repay the said advance amount. Towards the repayment of the said advance amount, the accused has issued cheque bg.No.729752 dt.16.02.2003 drawn on Indian Overseas Bank, Jayanagar Branch, Bangalore in favour of the complainant as part payment and assured about its honour on its presentation. The complainant has presented the said cheque for encashment through his Banker, Lord Krishna Bank Ltd., Richmond Circle Branch, Bangalore and the said cheque was bounced back with an endorsement dt.18.02.2003 as "Funds insufficient". When the complainant tried to contact the accused, the accused deliberately evaded him. Hence, the complainant got issued legal notice against the accused on 21.02.2003 through RPAD & UCP demanding the accused to pay the cheque amount. The notice sent through UCP was served on the accused, but he has not received the registered post. After receipt of the notice, the accused will fully not paid any payment to the complainant. Hence, the complainant approached this court contending that, the accused has committed an 4 C.C.No.4272/2005 offence punishable U/s.138 of N.I Act and prays to deal the accused in accordance with law.
3. On presentation of the complaint, this court has taken cognizance of the offence, Sworn statement of the complainant was recorded. On perusal of the documents and on hearing the complainant, process was issued against the accused. In pursuance of the process, the accused appeared before this court and enlarged on bail. Copies of the complaint papers supplied to him. Substance of accusation was readover and explained to the accused. Accused did not pleaded guilty and claims to be tried. Hence, the matter was posted for evidence of the complainant.
4. In order to prove the case of the complainant, he got examined himself as PW.1 & got marked documents as Ex.P.1 to P.10 and closed his side evidence. After completion of the complainant evidence, the accused was examined under U/s.313 of Cr.P.C. and his statement was recorded. The accused denied all the incriminating evidence appeared against him and chosen to lead his 5 C.C.No.4272/2005 defence evidence. To substantiate his defence and to falsify the claim of the complainant, the accused has examined himself as DW1 got marked document Ex.D.1 & D.2.
5. Heard arguments. In support of his evidence the counsel for the accused has relied on the citations reported below;
1. 2007(3) SCC Crimes 693 between Saroj Kumar Poddar Vs. State (NCT of Delhi) and Anr.
2. 2010(2) DCR P 700 Kar between Amzad Pasha Vs. H.N Lakshmana.
3. 2013(3) DCR P-57 Raj, between Ghanshyam Sahu Vs. The State of Rajasthan & Anr.
4. 2008 ILR Kar.4629 between Shivmurthy Vs. Amruthraj.
5. 2014(3) DCR P-488 P & H between Surjit Singh Vs. Amarpal Singh Tiwana.
6. 2013 (3) DCR P-120 P & H between M/s.Sekhon and Sekhon Finance and Vs. Rani.
6 C.C.No.4272/2005
7. 2010(2) DCR P-80 Kar. Between Matheson Bonsanquet Vs.K.V.Manjunatha.
6. Upon reading the entire materials on record and on hearing the arguments the following points that arise for my consideration:
(i) Whether the complainant proves
beyond all shadow of doubt that, the
accused has committed an offence
punishable U/s.138 N.I Act ?
What order?
7. My answer to the above points are as follows:-
Point No.1: In the Affirmative Point No.2: As per the final order, for the following.
REASONS
8. Point No.i : As the accused did not pleaded guilty the complainant has chosen to examine himself as PW1 and got marked documents as Ex.P.1 to P.10.
9. As per the decision reported in ILR 2008 Kar. Pg. 4629 between Shivamurthy Vs.Amruthraj, and in 7 C.C.No.4272/2005 another decision rendered by the Hon'ble Apex court in AIR 2008 SC 1325 between Krishna Janardharn Bhat Vs. Dattareya G. Hegde, in order to attract Sec.138 of N.I Act, the complainant has to satisfy 3 essential ingredients like, 1) there is legally enforceable debt, 2) that the cheque was drawn from the account of the Bank of the accused for discharge of whole or part of any debt or other liability which pre-supposes to be legally enforceable debt, 3) cheque so issued returned unpaid due to Insufficient of funds.
10. Keeping in view the ingredients of Sec.138 of N.I Act I proceed to discuss the documents of this case.
(a) Ex.P.1 cheque bg.No.729752 dt.16.02.2003 for Rs.5,00,000/-, drawn on Indian Bank, Jayanagar Branch, Bangalore. According to complainant Ex.P.1(a) is the signature of the accused. On perusal of the original complaint, which is marked as Ex.P.7, it is clear that it buttress the stand taken by the complainant herein.
(b) Ex.P.2 is the cheque return memo, which shows that the above said cheque was returned unpaid 8 C.C.No.4272/2005 dt.18.02.2003 because of the reason that, 'Funds insufficient.' (c )It must be noted as per Clause (b) proviso to Sec.138 of N.I Act, the complainant was required to make a demand for payment of the said amount within 30 days from the date of receipt of cheque as un-paid.
(d) Ex.P.3 is copy of the legal notice dt.21.02.2003, which shows that the complainant made demand in writing calling upon the accused to make repayment of the said cheque amount of Rs.5,00,000/- by issuing notice against him which is within 30 days.
(e) Ex.P.4 & 5(a) is the postal receipt and postal envelope & notice, reflects that the legal notice was issued against the accused and it is returned unserved.
As per Clause ( C) proviso to Sec.138 of N.I Act, the accused is entitle 15 days time to make payment of money covered under cheque. Further, as per Sec.142
(b) of N.I Act, complaint has to be filed within 30 days from the date of which the cause of action aroses. 9 C.C.No.4272/2005 Therefore, the complainant had filed this complaint well within time.
Thus, the complainant has fulfilled all the ingredients which were required for the completion of the offence punishable U/s.138 of N.I Act.
11. Keeping these documents in view, let us proceed to discuss that, whether the cheque in question belongs to the accused and whether the signature found on disputed cheque is that of the accused.
On looking the materials on record which shows that, there is no dispute so as to the fact that Ex.P.1 cheque is belongs to the accused Bank account and signature Ex.P.1(a) is belongs to the accused, as it is the specific defence of the accused that, he had issued Ex.P.1 cheque not in favour of the complainant towards the discharge of any liability, but he had issued the said chque in favour of one Mohan K Hiregoudar for getting de-notification of the land. Thus there is no dispute so as to the fact that Ex.P.1 cheque belongs to the Bank account of the accused and Ex.P.1 (a) is his signature. 10 C.C.No.4272/2005
12. It is well settled that, admission furnishes best evidence as per the decision laid down in AIR 1981 Pg. 2085.
Thus in my opinion, the admission given by the accused is sufficient to come to conclusion about the execution of N.I Act (Cheque in question) is admitted as well as proved.
13. In view of the decision reported in 2010 SC 1898 between Rangappa Vs. Mohan, once the execution of Negotiable Instruments Act is either proved or admitted, then the court shall draw a presumption U/s.139 of N.I Act, in favour of the complainant to that effect that the said Negotiable Instrument i.e, the disputed cheque has been drawn for valid consideration and it is towards legally recoverable debt and it is drawn for valuable consideration.
14. I have already discussed about the documentary evidence. Now I proceed to discuss the oral evidence. The complainant has examined himself as PW1 11 C.C.No.4272/2005 and he has filed his evidence in chief by way of an affidavit and reiterated the averments of complaint.
15. It is the specific case of the complainant that he was looking for purchase of landed property and on knowing the same, the accused along with Mohan K Hiregoudar approached the complainant & stated that he has prime land to suit the needs of the complainant and he also got introduced with the complainant that, he is the GPA holder of the original owners of the land which was in his possession. The complainant has agreed to purchase the land. As such there was an agreement in between the complainant and the accused on 4.12.2002 under the said sale agreement, on demand, the complainant has paid Rs.10,00,000/- vide pay order and it is accepted and endorsed by the accused in that agreement. Thereafter the complainant came to know that the accused is not GPA holder of the actual owner of the land and the actual owners have not signed the GPA by appointing the accused as their GPA and when the complainant has confronted with the accused with these issue, the accused apologized for his mis-deeds and 12 C.C.No.4272/2005 pleaded with the complainant not to take any legal action against him & on the other hand, he would repay the advance amount. Towards the repayment of the partial advance amount, the accused has issued cheque bg.No.729752 dt.16.02.2003 drawn on Indian Overseas Bank, Jayanagar Branch, Bangalore and on presentation of the said cheque through his banker, Lord Krishna Bank Ltd., Richmond Circle Branch, Bangalore and the said cheque was bounced back with an endorsement as "Funds insufficient". Inspite of bringing the fact of dishonor of the said cheque to the knowledge of the accused by causing due notice, the accused has not made good of the cheque amount . Hence, the complainant approached this court contending that, the accused has committed an offence punishable U/s.138 of N.I Act and prays to deal the accused in accordance with law.
15. To substantiate the oral evidence, the complainant produced document like sale agreement which is marked at Ex.P.7. The said sale agreement has been executed by the accused in favour of the 13 C.C.No.4272/2005 complainant by representing himself as the GPA holder of the original owners of the land covered under the said agreement. Though Ex.P.7 sale agreement is zerox in nature and marked on the objection etc., but as per the evidence of PW1, original sale agreement alleged to have been entered into between the complainant and accused on 14.12.2002, was lost, when he had kept the said document along with other document, at his office on 09.09.2007. Hence, he has relied on the secondary evidence as the said documents is out of reach. To substantiate the fact that there was theft in his office, he has produced documents like FIR, complaint and C- report lodged by one Ashwin Pai his brother's son and the said matter has been registered in Cr.No.184/2007 at High Grounds Police Station and those documents are marked at Ex.P.8 to P.10 in C.C.No.4271/2005 though deposition of this case reflects with respect to marking of documents like FIR, Complaint & C-Report as per Ex.P.8 to P.10 in this case also, no such documents is forth coming. Therefore, the complainant has laid foundation to rely on the secondary evidence with respect to the alleged sale agreement is concerned. Hence, though 14 C.C.No.4272/2005 Ex.P.7 is zerox copy of the sale agreement it could be looked into. On going through the said agreement it shows that the accused by representing himself as GPA of one A.Khaleel Mohammed Yousuf, H.V. Abdul Wahab and D. Norulla claiming that, they are actual owners of the land covered under the Ex.P.7 sale agreement, executed the said sale agreement infavour of the complainant agreeing to sell the lands described at the schedule of Ex.P.7 agreement infavour of the complainant.
16. Further, the said sale agreement reflects about the payment of the Rs.10,00,000/- by the complainant in faovur of the accused vide pay orders bg.No.8225920 drawn on Lord Krishna Bank Ltd., Bangalore on 4.12.2002 and it has been received by the accused as 1st party as GPA holder as a advance under the said documents.
17. Further, at one stretch accused had denied the execution of the alleged Ex.P.7 sale agreement and about receipt of Rs.10,00,000/- vide pay order, but the 15 C.C.No.4272/2005 suggestion put to PW1 by the accused counsel clearly reflects about the fact that the accused has admitted about the execution of the sale agreement in favour of the complainant. Because the accused counsel suggested to PW1 in kannada as follows:-
" F ªÉÄÃ¯É ºÉýzÀ ªÀÄÆ® PÀæ AiÀÄ PÀgÁgÀÄ ¥ÀvÀæPÉÌ £À£Àß ºÀwÛgÀ EvÀÄÛ J£ÀÄߪÀÅzÀÄ ¸Àj."
Further suggested that, ¥Àæ¸ÀÄÛvÀ ¥ÀæPÀgÀtzÀ ªÀÄÆ® PÀæAiÀÄzÀ PÀgÁgÀÄ ¥ÀvÀæ PÀ¼ÀĪÀÅ DUÉà E®è CzÀÄ £À£Àß ºÀwÛgÀªÉà EzÉ JAzÀÄ UÉÆwÛzÀÝgÀÆ ¸ÀºÀ GzÉÝñÀ¥ÀǪÀðPÀªÁV PÀ¼ÀĪÀUÀVzÉ JAzÀÄ ¸ÀʶֹPÉÆAqÀÀÄ ¸ÀļÀÄî ºÉüÀÄwÛzÉÝãÉAzÀgÉ ¸ÀjAiÀÄ®è.
Further suggested that, ¸ÀzÀj PÀæAiÀÄzÀ PÀgÁgÀÄ ¥ÀvÀæªÀ£ÀÄß DgÉÆæ ¸ÀzÀj ¸ÀªÉð £ÀA.5 d«ÄäUÉ §gÉzÀÄPÉÆlÖ PÀgÁgÀÄ ¥ÀvÀæ DgÉÆæUÉ d«Ää£À ªÀÄÆ® ªÀiÁ°ÃPÀgÀÄ §gÉzÀÄPÉÆlÖ ¤dªÁzÀ GPA ªÀiÆ®PÀ §gÉzÀÄPÉÆlÖ PÀæAiÀÄ PÀgÁgÀÄ ¥ÀvÀæªÁVzÉ J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è.
It clearly goes to show that there was sale agreement in between the complainant and the accused and accused by representing him as GPA holder of the 16 C.C.No.4272/2005 original land owners, executed sale agreement in favour of the complainant agreeing to sell the landed property covered under the said Ex.P.7 sale agreement (due to oversight it is marked at Ex.P.7 instead of Ex.P.8).
Further, nowhere, the accused has denied that the Ex.P.7 document is the copy of the alleged sale agreement entered into between himself and the complainant. This clearly testifies the fact that the accused by representing him as GPA holder of the original land owner has executed sale agreement as per Ex.P.7 in favour of the complainant. Having admitted the said sale agreement, the accused cannot come back denying the fact of receipt of Rs.10,00,000/- vide pay order as advance sale consideration under Ex.P.7 sale agreement.
18. Further it is case of the complainant that later he came to know that the accused is not the GPA holder of the original owners of the land and they have not executed any GPA infavour of the accused by appointing him as their attorney & on the other hand the accused 17 C.C.No.4272/2005 has forged the said and when this was confronted with the accused then, he apologized & pleaded the complainant not to initiate any legal action & he would repay the advance amount etc., and accordingly. The accused has issued Ex.P.1 cheque in favour of the complainant towards partial payment of the said advance amount etc. But accused has denied the claim and allegations of the complainant as false by taking defence that he is the real GPA holder of the original owners of the land bg.Sy.No.5 re-Sy.No.74 and 135 and he has not forged the GPA etc., but to prove the said defence, no Iota of documents is placed before this court except his oral testimony. If really, he has executed the alleged Ex.P.7 sale agreement in favour of the complainant as real GPA of the actual owners of the land stated under Ex.P.7 sale agreement, then what was the impediment for him to produce such GPA before this court and what was the impediment for him to examine the actual owners of the land, who allegedly executed the GPA in his favour by appointing him as their attorney to deal with the land i.e, land covered under Ex.P.7 sale agreement. But no such documents is produced before this court nor examined 18 C.C.No.4272/2005 any such persons. This creates doubt about the conduct of the accused in executing the alleged Ex.P.7 sale agreement as real or original Power of Attorney of the actual land owners. No doubt, the complainant not sated the name of the actual owners of the land, But PW1 has offered explanation that he could not recollect the names of the actual owners as sufficient time has been elapsed. Further, it is the accused who has claimed that he is the GPA of the actual owners of the land. But nowhere he has stated about the the names of the real owners of land. This also creates doubt.
19. Further at one stretch, the accused has setup the defence that he is the GPA holder of the land bg.No.5 Re.Sy.No.74, 135 & about execution of the sale agreement in favour of the compainant. but at another stretch he has stated that it is one Mohan K Hiregoudar has transacted in respect to the above said land and the complainant has given Rs.10,00,000/- in favour of the said Mohan K. Hiregoudar to get the Denotification of the land covered under Ex.P.7 sale agreement. This creates doubt. Because when the accused claimed that he is the 19 C.C.No.4272/2005 GPA holder of the said actual owners of the above said land then why and on what authority the said Mohan K Hiregoudar had transacted in respect to the said land with the complainant. No explanation by the accused in this regard. Hence, the defence taken by the accused is not convincing one.
20. Further at one stretch the accused has taken the defence that, the complainant has given Rs.10,00,000/- in favour of thee Mohan K Hiregoudar to get the Denotification of the land and at that time, Ex.P.1 cheque was collected by the accused as security. But according to the defence of the accused, he is the GPA holder of the original owners of the land covered under Ex.P.7 sale agreement and he has the GPA to deal with the said landed property. When such being the case, why and on what authority, the said Mohan K Hiregoudar had transacted for obtaining the denotification of the alleged land. Because the said Mohan K Hiregoudar is nothing to do with the said property. On the other hand, as per the claim of the complainant it is the accused who represented himself as GPA holder of the original owner 20 C.C.No.4272/2005 of the land bg.Sy.No.5 Re-Sy.No.74-135 & executed sale agreement in his favour agreeing to sell the land. When such being the case, why the complainant will pay Rs.10,00,000/- in favor of the said Mohan K Hiregoudar and if that is so, why and for what reason the accused has issued his bank account cheque that too, as security purpose in favour of the said Mohan K Hiregoudar.
21. Further, it is not the defence of the accused that, he has given the said cheque in favour of the complainant. On the other hand, it is the defence of the accused that he has given Ex.P.1 cheque in favour of the said Mohan K Hiregoudar. Hence, this creates doubt. Because, when the complainant has paid Rs.10,00,000/- by way of pay order in favour of the Mohan K Hiregoudar, then complainant would have collected the cheque from the Mohan K Hiregoudar or from the accused since it is the accused who has executed the sale agreement in favour of the complainant as GPA. Hence, there was no occasion for the accused to give his bank account cheque that too as security in favour of Mohan K Hiregoudar. 21 C.C.No.4272/2005 Hence, the defence taken by the accused is not convincing one.
22. No doubt there is evidence of filing Criminal Case against the Mohan K Hiregoudar in C.C.No.4273/2005 in relation to the bouncing of cheque for Rs.10,00,000/- but it is not the defence of the accused that the complainant has filed criminal case against the said Mohan K Hiregoudar in respect to the amount of Rs.10,00,000/- alleged paid in favour of Mohan K Hiregoudar and it is not the case of the complainant hat he has paid Rs.10,00,000/- in relation to the transaction of case on hand and the complainant has filed criminal case against the said Mohan K Hiregoudar in respect to the cheque involved in the case. On the other hand, the said case might be for different transaction and it is nothing to do with the case on hand.
23. Further it is the defence of the accused that, he has not given Ex.P.1 cheque in favour of the complainant towards the discharge of any debt or liability on the other hand he had issued Ex.P.1 cheque in favour 22 C.C.No.4272/2005 of the Mohan K Hiregoudar in relation to getting Denotification of the land bg.Sy.No.5 re-Sy.No.74-135 of M.S Palya Village. If really he has given Ex.P.1 cheque in favour of the said Mohan K Hiregoudar as security then he would have taken any steps to take back the alleged cheque from the said Mohan K Hiregoudar by causing notice and in case if the said Mohan K Hiregoudar had mis-used the said cheque, then the accused would have lodged complaint with Police for the mis-deeds committed by the said Mohan K Hiregoudar. But no such overtact is forth coming on the conduct of the accused. This clearly goes to show that Ex.P.1 cheque was not given in favour of the said Mohan K Hiregoudar inrespect to any transaction much less towards the denotification on the other hand, it was issued by the accused in favour of the complainant towards the discharge of the partial advance amount of Rs.10,00,000/- allegedly obtained by him vide pay order under Ex.P.7 sale agreement. Inspite of same just to over come the situation the accused has taken such vague defence.
23 C.C.No.4272/2005
24. Further if really the alleged Ex.P.1 cheque was issued by him infavour of Mohan K Hiregoudar in relation to the transaction of getting denotification of the land etc., then definitely he would have proved the said defence by examining the said Mohan K Hiregoudar before this court. But no such person is examined by the accused. Hence, the defence taken by the accused that Ex.P.1 cheque was not given in favour of the complainant towards the discharge of any debt or liability, on the other hand, it was issued in favour of the Mohan K Hiregoudar is not acceptable one.
25. Further, at one stretch the accused taken defence of monetary capacity of the complainant to advance the amount of Rs.10,00,000/- by suggesting the same during the cross-examination of DW1. But on reading the cross-examination of DW1, the accuse has suggested about giving of the above said Rs.10,00,000/- by way of pay order in favour of one Mohan K Hiregoudar in relation to denotification. By putting such suggestions, the accused has admitted the monetary capacity of the complainant to pay such advance amount. Hence, the 24 C.C.No.4272/2005 defence taken by the accused questioning the monetary capacity of the complainant holds no water.
26. Further, the accused has taken the defence of non service of demand notice contending that, he never resided in the address shown in the Ex.P.3 & Ex.P.6 complainant. On the other hand he is residing at No.58, E 8th Main Road, 2nd Cross R.L Colony. To substantiate the said fact he has produced Ex.D.1 Voters I.D Card. With this the accused has taken the defence that the complainant has not complied the provisions of Sec. 138
(b) of N.I Act. But on perusal of Ex.D.1 Voters I.D Card the said documents reflects the resident address as No.58, E 8th Main Road, 2nd Cross R.L Colony. But the same document also reflects that it was issued on 19.05.2003. But the alleged sale agreement in between the complainant and the accused and the alleged date of issuance of the cheque was during the year 2002 & 2003 i.e., on 4.12.2002 to 4.12.2003 respectively. Ex.D.1 does not reflects when and where on the date of alleged transaction between the accused. On the other hand, it shows that it was issued in favour of the accused on 25 C.C.No.4272/2005 19.05.2003. Hence, the said document is not suffice to come to conclusion that the accused was residing in the address as shown where the demand notice. On the other hand the said document reflects that the accused is residing in the address shown in the Voters I.D on from May 2003 onwards. Further no documents is produced by the accused to show that, where actually he was residing, when the alleged transaction i.e., sale agreement transaction and on the date of issuance of Ex.P.1 cheque. Thus the Ex.D.1 document does not help the case to prove the fact of non service of notice. On the other hand, the case records of C.C.4271/2005 (the connected matter, where the complainant and accused are one and the same and the transaction also is one and the same)reflects that the summons against the accused was issued to the address as shown in the demand notice & complainant and it was refused by the accused as per the endorsement submitted by the concerned Police to this court on 24.06.2005. This endorsement or shara was not questioned by the complainant. Further accused has not examined the said Police Constable to falsify the endorsement made by him with regard to the summons 26 C.C.No.4272/2005 issued to the address as shown in the notice and Ex.P.6 complaint.
27. Further, accused not explained what was the enimity in between the accused and the said Police Constable to give such endorsement. Absolutely no explanation from the side of the accused in this regard. Further, if the accused was not residing in the siad address definetly postal authorities would have returned the said post to the sender immediately and there was no necessity for them to wait for so many days in order to serve the said notice. This clearly goes to show that as on the date of notice also, the accused was very much residing in the address as shown in the notice and Ex.P.6 complaint, but inspite of the same, just to overcome the situation he has taken such vague defence of non-service of notice. Hence, the defence taken by the accused is not probable one.
28. Hence, with all these reasons, this court is of the opinion that the accused though made an attempt to rebut the presumption available U/s.139 of N.I m Act in 27 C.C.No.4272/2005 favour of the complainant, but he has failed in his attempt. Hence, the onus not shifted on the shoulders of the complainant, on the other hand it rests on the shoulder of the accused only. On the other hand, the complainant has proved there exists liability by proving the fact of payment of Rs.10,00,000/- as advanced amount vide pay order infavour of the accused under Ex.P.7 sale agreement and as it came to know that the accused is not the original GPA and the accused admitted the said fact as issued Ex.P.1 cheque towards partial payment of the said advance amount of Rs.10,00,000/- and the said cheque on its presentation bounced back dishonoured for the reason "funds insufficient" and inspite of brining the fact of dishonour of the cheque to the knowledge of the accused, by causing due statutory notice, the accused not complied with the demands of notice. Thus, the complainant has proved all the essential ingredients of Sec.138 of N.I Act to bring home the guilt of the accused. Hence, I am of the opinion that, complainant has proved that the accused has committed an offence punishable U/s.138 of 28 C.C.No.4272/2005 N.I Act. Hence, I answered Point No.1 in the Affirmative.
29. Point No.iv : In view of my discussions on Point No.1 in the Affirmative I proceed to pass the following.....
ORDER
Acting U/s.255(2) Cr.PC, the
accused is convicted for the offence
punishable U/s.138 of N.I.Act.
The accused shall pay a fine of
Rs.7,50,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for Six Months.
Out of the said amount,
Rs.7,40,000/- shall be paid to the
complainant as compensation, as
provided U/s.357 of Cr.P.C. and
Rs.10,000/- shall be remitted to the
state as fine.
(Dictated to the stenographer, transcribed by him, corrected and then pronounced in open court by me on this the 30th day of October 2015) (C.G.Vishalakshi) XIII A.C.M.M., Bangalore.
29 C.C.No.4272/2005ANNEXURE Witnesses examined on behalf of the complainant:
PW1 : P.Dayananda Pai Documents marked on behalf of the complainant:
Ex.P.1 : Cheque Ex.P.2 : Bank Endorsement Ex.P.3 : Copy of the Legal Notice Ex.P.4 : RPAD Receipt Ex.P.5 : UCP Receipt Ex.P.6 : returned RPAD cover Ex.P.7 : Complaint Ex.P.8 : Police Complaint Ex.P.9 : FIR Copy Ex.P.10 : Investigation report
Witnesses examined on behalf of the accused:
DW1 : Jaheer Ahmed Documents marked on behalf of the accused:
Ex.D.1 : Election I.D card copy Ex.D.2 : Emergent Notice copy In W.P.No.21625-62626 issued By the Hon'ble High Court XIII A.C.M.M Bangalore.
• Accused copy furnished.
30 C.C.No.4272/2005
(Order typed vide separate Sheet) ORDER Acting U/s.255(2) Cr.PC, the accused is convicted for the offence punishable U/s.138 of N.I.Act.
The accused shall pay a fine of Rs.7,50,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for Six Months.
Out of the said amount, Rs.7,40,000/-
shall be paid to the complainant as compensation, as provided U/s.357 of Cr.P.C. and Rs.10,000/- shall be remitted to the state as fine.
(C.G.Vishalakshi) XIII A.C.M.M., Bangalore.