Bangalore District Court
M/S Gajavadana Chits Pvt. Ltd vs Sri. Somashekar. C on 26 December, 2024
C.C.NO.748/2024
0
KABC030009412024
Presented on : 21-01-2023
Registered on : 24-01-2023
Decided on : 26-12-2024
Duration : 1 years, 11 months, 5 days
IN THE COURT OF THE XXVIII ADDL. CHIEF JUDICIAL
MAGISTRATE, BENGALURU CITY
Present:
Soubhagya.B.Bhusher,
B.A.,LL.B.,LL.M
XXVIII A.C.J.M, Bengaluru City.
DATED: THIS THE 26th DAY OF DECEMBER-2024
C.C.NO.748/2024
Complainant: M/s. Gajavadana Chits Pvt.,Ltd (Regd),
Having registered office at No.21,
2nd Floor, Rushabh Mansion,
6th Cross, Opp: Alahabad Bank,
Sampige Road, Malleshwaram,
Bengaluru-03,
R/by its Managing Director,
Sri.Varadaraj.
Email: [email protected]
Mob: 9731309335.
(By Sri.S.S.Associates & Advocates.,)
V/s
Accused: Sri.Somashekar.C S/o Late.Chiranjeevimurthy,
Age: 52 years, R/at No.A-5/1,
6th Cross, Opp-Malleswaram Railway
Station, Maruthi Extension,
Srirampura, Bengaluru-560021.
C.C.NO.748/2024
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And also at: No.37/1, 3rd Floor,
Opp:Sathyanarayana Kalyana Mantapa,
9th Cross, J.C.Nagara, Kurubarahalli,
Bengaluru-560086.
Mob: 8971040199.
(By Sri.S.Yathiraj.,Adv.,)
:JUDGMENT:
This case arises out of the private complaint filed
by the complainant against the accused under section
200 of Cr.P.C., for an offence punishable under section
138 of N.I.Act.
2. The case of the complainant’s in brief is as
under:
It is the case of the complainant is that the
accused is one of the subscriber/member in chit group
No.G3D03, ticket No.03 for a chit value of
Rs.5,00,000/-, payable at Rs.16,666/- over a period of
30 months. The accused was bided the said chit for
Rs.1,50,000/- in the chit auction dated: 20.05.2021 and
he has received the prized amount of Rs.3,47,000/-
through cheque and on the same day he had executed
a receipt/voucher along with on demand promissory
note. Further stated that the accused has paid the
monthly chit subscription amount of Rs.16,666/-
including dividend amount of Rs.1,50,335/-, thereafter,
he has not paid the monthly chit subscription amount of
Rs.3,49,665/- and the said chit was ended on July-
2023. Therefore the complainant had issued a demand
C.C.NO.748/2024
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notice to the accused calling upon him to pay the
balance subscription amount. After issuance of the
demand notice during the last week of September
2023, he had issued the post dated cheque No.093109
dated: 09.10.2023 for Rs.3,63,651/- drawn on M/s.
Canara Bank, Srirampura branch, Bengaluru. The
complainant presented the said cheque for realization
through its banker M/s Karur Vysya Bank Ltd.,
Malleshwaram branch, Bengaluru. But the said cheque
was dishonored on 10.10.2023 as “Funds Insufficient”.
Thereafter, on 08.11.2023 the complainant got issued a
legal notice to the accused through its counsel calling
upon him to pay the cheque amount. The said one
notice was returned as “Addressee left” and another
address was also returned as “No such person” on
10.11.2023. After issuance of the notice, the accused
neither reply to the notice nor paid the cheque amount.
As such, the accused have committed an offence
punishable under section 138 of N.I.Act. Hence, the
present complaint came to be filed before this court on
22.12.2023.
3. After the complaint was filed, the cognizance of
the offence cited therein was taken. Sworn statement of
the complainant was recorded. Since there were
sufficient materials to proceed against the accused, an
order was passed on 05.01.2024 to register the case in
Register No.III and it was registered as a criminal case.
C.C.NO.748/2024
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4. Thereafter, summons was issued to the
accused and he has appeared before the court through
advocate and secured bail. He was furnished its
necessary papers as complied under section 208 of
Cr.P.C. Thereafter, the plea of the accused was
recorded by the court. He has pleaded not guilty and
claimed to be tried.
5. The complainant in support of its case have
examined its Managing Director as PW.1 and got
marked 13 documents at Ex.P.1 to 13 and closed its
side. The leaned counsel for the accused has
submitted no cross of PW.1. Hence, the cross of PW.1
taken as nil.
6. After closer of the evidence of the complainant,
the statement of the accused under section 313 of
Cr.P.C., was recorded. He has denied the incriminating
evidence appearing against him. The learned counsel
for the accused has submitted no defence evidence.
Hence, the defence evidence taken as nil.
7. Heard the arguments on both the sides and
perused the material placed on record.
8. Upon hearing the arguments and on perusal of
the material placed on record, the following points arise
for my consideration:
1.Whether the complainant proves the
existence of legally enforceable
debt/liability.?
C.C.NO.748/2024
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2.Whether the complainant further proves
that the accused had issued the cheque-
Ex.P.1, towards the discharge of the said
legally enforceable debt/liability.?
3.Whether the complainant further proves
that cheque-Ex.P.1 was dishonored for
the reasons “Funds Insufficient” and
thereafter the accused had failed to
repay the same within the statutory
period, inspite of receipt of legal notice.?
4.Whether the accused have thus
committed an offence punishable under
section 138 of N.I.Act.?
5. What order?
9. My answers to the above points are as under:
Point No.1: In the Affirmative
Point No.2: In the Affirmative
Point No.3: In the Affirmative
Point No.4: In the Affirmative
Point No.5: As per final order, for the following:
:REASONS:
10. POINT NO.1 TO 4: These points are inter-
related to each other and finding given on any one
point will bearing on the others. Hence, in order to
avoid repetition of facts and evidence, I have taken
these points altogether for common discussion. The
case of the complainant is that he was acquainted with
the accused. The accused is a subscriber/member of
chit group No.G3D03, ticket No.03 for a chit value of
Rs.5,00,000/-. The monthly chit amount of Rs.16,666/-
over a period of 30 months. The said chit was bidded
C.C.NO.748/2024
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by the accused for Rs.1,50,000/- and he has received
the prized amount of Rs.3,47,000/- through cheque, on
the same day he had executed a receipt/voucher along
with promissory note. The accused has paid the
monthly chit subscription amount of Rs.16,666/-
including dividend amount of Rs.1,50,335/-, thereafter,
he has not paid subscription amount and the said chit
was ended on July-2023. Therefore the complainant
had issued a demand notice to the accused calling
upon him to pay the balance subscription amount. After
issuance of demand notice the accused had issued the
post dated cheque in question. The complainant was
presented the said cheque for realization through its
banker. But the said cheque was dishonored as “Funds
Insufficient”. Thereafter the complainant got issued a
legal notice to the accused through its counsel. Inspite
of issuance of the notice, the accused neither reply to
the notice nor paid the cheque amount. As such, the
accused have committed an offence punishable under
section 138 of N.I.Act. Hence, the present complaint
came to be filed before this court.
11. In support of the case, the complainant’s have
examined its Managing Director as P.W.1 and 13
documents were marked at Ex.P.1 to 13. In the chief
examination P.W.1 has repeated the contents taken by
the complainant in the complaint. Ex.P.1 is the cheque
cheque issued by the accused in favour of the
C.C.NO.748/2024
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complainant dated: 09.10.2023 for Rs.3,63,651/-.
Ex.P.1(a) is the signature of the accused. Ex.P.2 is the
bank memo dated:10.10.2023 informing the dishonor of
the cheque as “Funds Insufficient”. Ex.P.3 is the office
copy of legal notice dated: 08.11.2023. Ex.P.4 and 5
are the postal receipts. Ex.P.6 and 7 are the returned
postal covers. Ex.P.6(a) and 7(a) are the returned legal
notices. Ex.P.8 is the certified copy of minutes of
meeting. Ex.P.9 is the chit payment voucher. Ex.P.9(a)
is the signature of the accused. Ex.P.10 is the demand
promissory note. Ex.P.10(a) is the signature of the
accused. Ex.P.11 is the demand notice. Ex.P.12 is the
postal receipt. Ex.P.13 is the Complaint.
12. In order to attract the offence punishable
under section 138 of N.I.Act, the complainant is firstly
required to prove the existence of legally enforceable
debt/liability, for which the cheque came to be issued.
The learned counsel for the complainant has submitted
that from the evidence placed on record, the fact that
the accused after taking the chit amount failed to repay
the subscription amount including dividend amount.
After the repeated request made by the complainant,
the accused has not paid any amount to the
complainant. Further submitted that the accused in
order to repayment of debt/liability had issued the
cheque in question in favour of the complainant. He
further submitted that the accused has not denied
C.C.NO.748/2024
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Ex.P.1 being his cheque drawn on his account. When
the signature is not disputed, the presumption under
section 139 N.I.Act is to be drawn in favour of the
complainant. The accused has failed to elicit anything
in the cross examination of P.W.1 to disbelieve the case
of the complainant. The defence have failed to rebut
the presumption under section 139 N.I.Act. He further
submitted that the accused has failed to produce any
believable evidence how the cheque was got the
complainant and why he has not returned back the
same is not clear. He further submitted that under
section 139 of N.I.Act, there is a presumption that the
cheque has been issued for discharge of legally
enforceable debt/liability. In the present case, the
accused has not disputed Ex.P.1 being his cheque
drawn on his account. The said presumption is
available to the complainant. Moreover, under section
118 of N.I.Act, there is a presumption that the
Negotiable Instruments is drawn on the date, for the
amount and in favour of the person as shown in it. It is
for the accused to rebut the said presumption. But in
the case on hand no such evidence forthcoming.
Hence, the complainant have proved their case.
13. Further in order to prove the guilt of the
accused for an offence punishable under section 138 of
Negotiable Instruments Act, 1881, the complainant is
required to prove the following ingredients beyond
C.C.NO.748/2024
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reasonable doubt:
i. The accused had issued the cheque in favour
of the complainant.
ii. The said cheque has been issued in
discharge of a legally recoverable
debt/liability and is for consideration.
iii. The said cheque has been dishonored on
presentation.
iv. The accused has failed to make payment of
cheque amount within statutory period of
service of legal notice served to him by the
complainant.
14. In order to prove the case, the Managing
Director of the complainant company is examined
himself as PW.1 in the form of affidavit and reiterated
almost all the contents of the complaint and got marked
the 13 documents at Ex.P.1 to 13. In the chief
examination PW.1 has specifically deposed that in
order to repayment of due/debt the accused had issued
the cheque in favour of the complainant. Further
deposed that when the complainant was presented the
said cheque for encashment same was dishonor as
“funds insufficient”. Thereafter the complainant have
issued a legal notice to the accused, inspite of issuance
of the notice, the accused neither reply to the notice nor
paid the cheque amount. The evidence given by the
complainant/PW.1 remained unchallenged by the
accused.
C.C.NO.748/2024
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15. During the course of proceedings, both the
parties and their respective counsels have filed a joint
memo. The contents of the joint memo are as follows:
“1.The complainant and the accused have
compromised the above matter amicably on the
intervention of well wishers and friends. The
accused agreed to pay a sum of Rs.3,60,000/-
to the complainant in three installments;
Dated: 31.01.2025 Rs.1,20,000/-,
Dated: 28.02.2025 Rs.1,20,000/-,
Dated: 31.03.2025 Rs.1,20,000/-.
Total of Rs.3,60,000/-.
2. In the event of failure, on the part of the
accused pay the above amount to the
complainant as agreed above, the complainant
is at liberty to take legal action against the
accused for the recover of the same. Hence,
prays to pass the judgment as per joint memo.
16. By filing the above said joint memo the
accused has admitted the legally enforceable
debt/liability as stated by the complainant in the
complaint. Considering the joint memo and submission
of the learned counsel for the complainant as well as
the learned counsel for the accused, this court deem it
proper to grant time to the accused for repayment of
the amount to the complainant. Thus, material available
on record clearly discloses that the complainant have
complied all the ingredients of Negotiable Instruments
Act. In view of forgoing discussions, this court is of the
C.C.NO.748/2024
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opinion that the complainant have established that the
accused have committed an offence punishable under
section 138 of Negotiable Instruments Act. The joint
memo filed by the complainant and the accused is
sufficient. Accordingly, I answer point No.1 to 4 in the
“Affirmative”.
17. POINT NO.5: In view of the reasons stated
and discussed on point No.1 to 4, I proceed to pass the
following:
ORDER
Acting under section 255(2) of Cr.P.C.
the accused is convicted for an offence
punishable under section 138 of N.I.Act.
The bail bond executed by the
accused is hereby stands cancelled.
The accused is sentence to pay fine
Rs.3,60,000/- (Rupees three lakhs sixty
thousand only) to the complainant and the
said fine amount shall be paid to the
complainant as compensation as per
section 357(1)(b) of Cr.P.C.
Terms and conditions of the joint
memo becomes part and parcel of this
order.
In default of payment of the fine
amount as agreed upon, the accused shall
under simple imprisonment for 03 months.
C.C.NO.748/2024
11(Dictated to the stenographer directly on computer
typed by her, corrected by me and then judgment
pronounced in the open court on 26th day of
December-2024)(Soubhagya.B.Bhusher)
XXVIII Addl. Chief Judicial
Magistrate, Bengaluru City.
ANNEXURE
List of witness examined on behalf of the complainant:
PW.1 : Sri.Varadaraju.
List of documents marked on behalf of the complainant:
Ex.P.1 : Cheque. Ex.P.1(a) : Signature of the accused. Ex.P.2 : Bank endorsement. Ex.P.3 : Office copy of the legal notice. Ex.P.4 & 5 : Postal receipt Ex.P.6 & 7 : Returned postal covers.
Ex.P.6(a) & 7(a) : Returned legal notices.
Ex.P.8 : Certified copy minutes of meeting.
Ex.P.9 : Chit payment voucher. Ex.P.9(a) : Signature of the accused. Ex.P.10 : Demand promissory note. Ex.P.10(a) : Signature of the accused. Ex.P.11 : Demand notice. Ex.P.12 : Postal receipt. Ex.P.13 : Complaint.
List of witnesses examined on behalf of the accused:
-Nil-
List of documents marked on behalf of the accused:
-Nil-
XXVIII Addl. Chief Judicial
Magistrate, Bengaluru City.
C.C.NO.748/2024
1226.12.2024 (Judgment pronounced in the Open
Court Vide Separate Sheet):ORDER:
Acting under section 255(2) of
Cr.P.C. the accused is convicted for
an offence punishable under section
138 of N.I.Act.
The bail bond executed by the
accused is hereby stands cancelled.
The accused is sentence to pay
fine Rs.3,60,000/- (Rupees three
lakhs sixty thousand only) to the
complainant and the said fine amount
shall be paid to the complainant as
compensation as per section 357(1)
(b) of Cr.P.C.
Terms and conditions of the joint
memo becomes part and parcel of
this order.
In default of payment of the fine
amount as agreed upon, the accused
shall under simple imprisonment for
03 months.
XXVIII Addl. Chief Judicial
Magistrate, Bengaluru City.