Bangalore District Court
M/S Vaishnavi Souharda Sahakari Sangha … vs Rajesh Bhat on 18 January, 2025
Digitally signed by
KABC030223192024
ANANDAPPA ANANDAPPA M
M Date: 2025.01.18
17:14:20 +0530
IN THE COURT OF THE XL ADDL., CHIEF JUDICIAL
MAGISTRATE, BENGALURU.
PRESENT: SHRI. ANANDAPPA M.
B.A.,LL.B.
XL ADDL. C.J.M., BENGALURU.
C.C.NO.13569/2024
DATED THIS THE 18th JANUARY, 2025
BETWEEN:
M/s Vaishnavi Souharda Sahakari Sangha Ltd.,
Head Office No.12/84, 2nd Main Road,
RBI Colony, 3rd Block East, Jayanagar,
Bengaluru- 560 011.
Represented by its CEO
Sri. K.R. Ravi.
...Complainant
(By Sri.C.S.P., Advocate)
AND:
Rajesh Bhat
S/o Mahabaleshwara Bhat,
Age: 48 years,
No.117, Ground Floor,
Shivakrupa, 3rd Cross,
Raghavendra Badavene,
Mudalapalya, Bengaluru - 560 091.
Working at:
ATS Power Solution Pvt. Ltd.,
Shed No.8, Kodigehalli,
Magadi Road,Bengaluru - 560 091.
....Accused
(By Sri.A.R.M., Advocate)
2 CC NO.13569/2024
KABC030223192024
Offence complained of Section 138 of N.I.Act.
Date of complaint 15.03.2024
Date of closing of evidence 06.12.2024
Opinion of the Judge Accused is found guilty.
JUDGEMENT
This case is registered against the accused for the offence
punishable under Section 138 of Negotiable Instruments Act (in
brief N.I.Act for brevity).
2. The substance of the case of complainant :
It is the case of the complainant that the accused borrowed
business loan of Rs.5,00,000/- by executing relevant documents by
agreeing to repay the same in installments. But the accused
became defaulter. Total balance was Rs.5,48,511/-. After several
demands, the accused issued cheque of State Bank of India, Tata
Silk Farm branch, Bengaluru, bearing No.624484 dated
20.01.2024 for Rs.5,48,511/- to discharge his liability.
3. The complainant presented the said cheque through his
banker IDBI Bank, Jayanagar 4th Block branch, Bengaluru for
realization. It was dishonored for the reason funds insufficient on
24.01.2024. Thereafter, the complainant issued legal notice to the
address of accused through registered post on 03.02.2024 by
calling upon the accused to make payment within 15 days. The
3 CC NO.13569/2024
KABC030223192024
said notice was served on accused. The accused neither replied nor
made payment of said amount. The accused knowingly issued a
cheque with an intention to cause loss to complainant. The said
amount is legally recoverable debt. Hence, complainant filed this
complaint under section 200 of Cr.P.C. by praying to punish the
accused for the offence under Section 138 of N.I. Act.
4. After receiving the complaint this Court scrutinized the
documents and took cognizance for an offence under Section 138 of
N.I. Act. Sworn statement of the complainant was recorded. He filed
his sworn statement by way of affidavit. There were sufficient
materials to constitute the offence. Hence, this Court issued
process against the accused.
5. Secured the presence of accused. He was enlarged on bail.
The substance of accusation was read over to accused in the
language known to him, for which he pleaded not guilty.
6. As per the guidelines issued by the Hon’ble Apex Court in
the case of Indian Bank Association Vs. Union of India & others
reported in 2014(5) SCC 590 this Court treated the sworn
statement of complainant as evidence. This Court also recorded the
statement of accused under Section 313 of Cr.P.C. He denied the
incriminating evidence of complainant and choose to lead defence
evidence. Further he filed application to recall PW-1 to conduct
cross examination. The said application was allowed. Despite given
sufficient opportunities the accused had not cross-examined and
4 CC NO.13569/2024
KABC030223192024
also not led defence evidence. When case was posted for arguments
both parties filed joint memo. The accused clearly admitted his
liability for Rs.4,91,116/- and he agreed to pay said amount in
twenty installments.
7. Heard both side. Perused the materials placed on record.
8. The following points arise for my consideration.
1. Whether complainant proves beyond all
reasonable doubt that the accused
towards discharge of his liability issued
cheque bearing No.624484 dated
20.01.2024 for Rs.5,48,511/- drawn on
State Bank of India, Tata Silk Farm
branch, Bengaluru in his favour and
when he presented the said cheque for
realization, it was dishonored for the
reason funds insufficient in the account
maintained by the accused?
2. Whether the complainant proves beyond
all reasonable doubt that he issued
demand notice to the accused, the
accused did not repay the cheque amount
within statutory period and thereby he
has committed an offence punishable
U/Sec.138 of N.I.Act?
3. What order?
9. My answers to the above points as under.
Point No.1 & 2 : In the Affirmative.
Point No.3 : As per final order, for the following:
5 CC NO.13569/2024
KABC030223192024
REASONS
10. POINT NO.1 & 2 : These points are inter-linked with each
other, to avoid repetition of facts and circumstances they are taken
together for common discussion.
11. To substantiate the case against accused, the
complainant relied on documents which were marked as Ex.P1 to
12. The PW-1 who is authorized person of complainant bank
reiterated the averments of complaint in his evidence. The Ex.P1 is
cheque issued by the accused for Rs.5,48,511/-. Ex.P2 is memo
issued by the banker of accused. It shows that when complainant
presented the Ex.P1 cheque for realization, it was dishonored on
24.01.2024 for the reason funds insufficient. Ex.P3 is office copy of
the legal notice. Ex.P4 is postal receipt. Ex.P5 is postal
acknowledgment. These documents show that complainant issued
notice to the accused on 03.02.2024 i.e., within 30 days from the
date of dishonor of cheque by calling upon him to pay cheque
amount within 15 days. The accused had not paid the amount of
cheque to the complainant within 15 days. Ex.P6 is authorization
letter. Ex.P7 is board resolution letter. Ex.P8 is loan application.
Ex.P9 is on demand promissory note. Ex.P10 is agreement bond.
Ex.P11 is salary attachment form. Ex.P12 is statement of account.
The evidence and documents clearly indicate that the complainant
complied the ingredients to constitute an offence punishable under
Section 138 of N.I.Act.
6 CC NO.13569/2024
KABC030223192024
12. The N.I. Act provides some presumptions in favour of
complainant under Section 118 and 139 of N.I. Act. These
provisions arise presumption in favour of holder of the cheque that
he has received the same for discharge in whole or in part of any
debt or liability. However, it is well settled principle of law that the
presumption available under Sec.139 of N.I. Act, can be rebutted
by accused by raising probable defence.
13. In order to rebut the presumption the accused has to
establish his defence by cross examining the complainant and by
adducing defence evidence. In the present case, the accused had
not cross-examined the PW.1 and also not led defence evidence.
Moreover, the complainant has established his case by producing
documentary evidence and by adducing oral evidence. When case
was posted for defence evidence both parties filed joint memo by
stating that accused admitted his liability and admitted the
issuance of cheque. Further the accused admitted that he is ready
to repay the amount of Rs.4,91,116/- in twenty equal installments
from January 2025 to August 2026 to the complainant. The
complainant agreed to receive the said installments and prays to
pass judgement by providing the said installments. The said joint
memo shows that the accused admitted entire transaction and the
amount mentioned in Ex.P1 cheque is legally enforceable debt.
Moreover, presumption is available in favour of complainant. It
shows that the accused has no evidence to rebut the presumption.
7 CC NO.13569/2024
KABC030223192024
14. Once the execution of Negotiable Instrument is either
proved or admitted, then the Court shall draw a presumption to the
effect that Negotiable Instrument has been drawn for valid
consideration and legally enforceable debt was in existence. Hence,
this court considered that there is legally recoverable debt and the
accused issued Ex.P1 cheque in favour of complainant to discharge
his liability. The accused failed to prove his burden. In the present
case, the complainant proved that the accused has committed an
offence punishable under section 138 of N.I. Act. Hence, I answer
the point No.1 and 2 in the Affirmative.
15. Point No.3: Once the accused is found guilty for the
offence punishable under section 138 of N.I.Act, he may be
punished with imprisonment for a term which may be extended to
two years or with fine which may be extended to twice of the
amount of the cheque or with both. But in the present case, the
accused filed memo by stating that he is ready to repay the amount
of Rs.4,91,116/- in twenty equal installments of Rs.25,000/- i.e.
20th of every month till the 20 th of August 2026. The complainant
agreed to receive the said installments and prayed to pass
judgement by providing the said installments. Even this court has
power to grant time to pay fine amount in installments as per
section 464 of B.N.S.S. The complainant also agreed to receive the
said amount in twenty installments. There is no impediment to
provide installments to pay fine amount. Hence, I proceed to pass
the following:
8 CC NO.13569/2024
KABC030223192024
ORDER
Acting under section 255(2) of Cr.P.C. the
accused is convicted for the offence punishable
under Section 138 of N.I.Act and sentenced to
pay fine of Rs.4,91,116/- (Four Lakh ninety one
thousand and one hundred sixteen only).
The accused is directed to pay said fine in
20 installments from 20.01.2025 till
20.08.2026.
If fine is realized, the said amount shall be
paid to the complainant as compensation as per
Section 357 of Cr.P.C.
In default of payment of fine amount, the
accused shall under go simple imprisonment for
6 months.
The accused is entitled for free copy of this
judgment U/Sec.363 of Cr.P.C. But today
accused is not present before the court to
receive free copy of this judgment. Hence free
copy of judgment is not supplied to accused. If
accused voluntarily appears before the court,
free copy will be served on accused.
Bail bonds executed by the accused and
surety are stand canceled.
(Dictated to the stenographer, transcribed and typed by her, corrected by me and then pronounced in
the open court on this 18th January 2025).
(Anandappa.M)
XL Addl. C.J.M, Bengaluru.
9 CC NO.13569/2024
KABC030223192024
: ANNEXURE:
WITNESS EXAMINED ON BEHALF OF PROSECUTION:
P.W.1 : K.R. Ravi.
WITNESS EXAMINED ON BEHALF OF ACCUSED
..Nil..
DOCUMENTS MARKED ON BEHALF OF PROSECUTION:
Ex.P1 : Cheque
Ex.P1(a) : Signature
Ex.P2 : Memo
Ex.P3 : Office copy of the legal notice
Ex.P4 : Postal receipt
Ex.P5 : Postal acknowledgment
Ex.P6 : Authorization letter
Ex.P7 : Board resolution letter
Ex.P8 : Loan application
Ex.P9 : On demand promissory note
Ex.P10 : Agreement bond
Ex.P11 : Salary attachment form
Ex.P12 : Statement of account.
DOCUMENTS MARKED ON BEHALF OF ACCUSED
..NIL..
(Anandappa.M)
XL Addl. C.J.M, Bengaluru.
[ad_1]
Source link