Bangalore District CourtM/S Kotak Mahindra Prime vs A Ramesh on 8 February, 20211               C.C. No.24649/2016 Judgt.\n\n\n   IN THE COURT OF THE XXI ACMM, BENGALURU\n\n     Dated: This the 08th day of February, 2021.\n                           Present:\n              Smt. Reshma H.K., B.A.,LL.B.,\n                  XXI ACMM, Bengaluru\n                    C.C.No.24649/2016\n\n    Complainant       : M/s Kotak Mahindra Prime\n                        Ltd.,\n                        No.20, 1st floor, Uniwarth Plaza,\n                        Sankay Road, Palace Guttahalli,\n                        Bangalore - 560 020.\n                        (A Company incorporated underCompanies        Act1956      &\n                        represented by its Authorized\n                        Signatory Charan K.K.,\n                        Legal Manager,\n                        Aged about 30 years.\n                                       (By Sri.H.B.S., adv.)\n                                 V/s\n    Accused           : A Ramesh,\n                        No.566, 6th block, 10th cross,\n                        Rajaji nagar,\n                        Bangalore - 560010.\n                                       (By Sri.K.S.S. Adv.)\n\n                        JUDGMENTThis is the complaint filed by the complainant undersection\n\n200of Cr.P.C. against the accused for the offence punishable\n\nundersection 138of Negotiable Instruments Act and to take\n\ncognizance of the offence to punish the accused in accordance\n\nwith law.2             C.C. No.24649/2016 Judgt.2.     The factual matrix of the complainant is that the\n\ncomplainant is a company, engaged in financial services, it had\n\nintroduced Auto finance under loan cum Hire purchase scheme\n\nfacilities and personal loan for the benefit of its valued\n\ncustomers. The accused has approached the complainant and\n\nrequested   to   provide   CARNEW   Loan   facility.   Further,   the\n\ncomplainant agreeing to accused request and accused has\n\nexecuted loan agreements vide CF9322679 dated:17.06.2013,\n\nthereby agreeing to comply with the loan terms and conditions\n\nwith complainant. Further it is submitted that a sum of\n\nRs.6,00,000/- was sanctioned under the above mentioned\n\nAgreements and Loan amount was given to accused by\n\ncomplainant. Accused had agreed that the punctual payment of\n\neach installment was the essence of the loan terms. Further it is\n\nsubmits that towards discharge of the above said loan liability,\n\nthe accused with a dishonest intention to defraud them without\n\nmaintaining the sufficient balance in his account and issued a\n\ncheque bearing No.777449 dated: 23.08.2016 for an amount of\n\nRs.1,23,438/- drawn on Bank of Maharashtra.3.   Further, the complainant has presented the above said\n\ncheque for encashment through his banker but to the shock and3            C.C. No.24649/2016 Judgt.surprise of the complainant said cheque returned as 'Funds\n\nInsufficient' as per the bank memo dated:30.08.2016.4.       Thereafter, the complainant approached the accused and\n\ninform about the dishonor of the said cheque. Further, the\n\ncomplainant issued legal notice to the accused through R.P.A.D\n\ndated 21.09.2016 calling upon him to pay the amount covered\n\nunder the cheque within the stipulated period and the same was\n\nreturned with postal shara as 'Door Locked' on 27.09.2016.\n\nHence, the complainant filed the present complaint against the\n\naccused for the offence punishable undersection 138of\n\nNegotiable Instrument Act.5.       This court after perusing records, cognizance of the offence\n\nwas taken and there on sworn statement of the complainant was\n\nalso recorded. The criminal case has been registered against the\n\naccused for the offence punishable undersection 138of N.I. Act.6.       Upon service of summons, accused appeared through his\n\ncounsel and enlarged on bail. Thereafter, the court has recorded\n\nthe plea of the accused and the accused not pleaded guilty of the\n\noffence and claims to be tried. Hence, the case was posted for\n\ntrial.4           C.C. No.24649/2016 Judgt.7.    The complainant in order to prove his case has examined\n\nhimself as PW-1 and got marked 06 documents i.e., Ex.P-1 to\n\nEx.P-6.Original Cheque marked as Ex.P.1, Signature of accused\n\nmarked as Ex.P.1(a), Retun Memo marked as Ex.P.2, Legal Notice\n\nmarked as Ex.P.3, Returned RPAD Cover marked as Ex.P.4,\n\nStatement of Account marked as Ex.P.5 and True copy of\n\nResolution marked as Ex.P.6.8.    Heard arguments and perused the materials placed before\n\nme. The following points would arise for consideration.1.   Whether the complainant proves that the\n           accused issued cheque bearing No.777449\n           dated:23-08-2016        for     the       legally\n           enforceable debt of Rs.1,23,438/-, in favour\n           of complainant and it was presented within\n           the validity period and same is returned\n           unpaid on account of "Funds Insufficient"and thereby caused the dishonor of cheque\n           and inspite of legal notice, the accused fail\n           to make payment and thereby committed\n           an offence punishable undersection 138of\n           Negotiable Instrument Act?2. What Order?5             C.C. No.24649/2016 Judgt.9.    My findings on the above points are as under:-Point No.1: In the "Affirmative"\n           Point No.2: As per the final orders for the\n                        following:REASONS10.   Point No.1: The definite case of the complainant is that\n\nwith respect to returning of Loan installment amount of\n\nRs.1,23,438/-, accused had issued cheque bearing No.777449\n\ndated:23.08.2016 for an amount of Rs.1,23,438/-. Further, the\n\ncomplainant has presented the above said cheque for collection.\n\nBut the cheque was dishonored for 'Funds Insufficient'. It is\n\nfurther case of the complainant is that inspite of oral requests,\n\nthe accused has not repaid the amount and hence, he has issued\n\nlegal notice on 21.09.2016 and the same was returned with\n\npostal shara as 'Door Locked' on 27.09.2016. Hence, the\n\naccused has committed the offence punishable undersection\n\n138of Negotiable Instrument Act.11.   To prove the case of the complainant, the complainant\n\nhimself examined as PW.1 in the form of affidavit and reiterated\n\nalmost all the contents of complaint averments once again and\n\ngot marked the documents as Ex.P.1 to P.6. Ex.P.1 is the cheque6             C.C. No.24649/2016 Judgt.dated 23.08.2016 for a sum of Rs.1,23,438/- stated to have been\n\nissued by the accused in favour of complainant drawn on Bank of\n\nMaharashtra. Ex.P.2 is the cheque return memo issued by\n\nCitibank NA, Chennai on 30.08.2016 by stating that cheque\n\nbearing No.777449 was returned unpaid as 'Funds insufficient'.\n\nEx.P.3 is the office copy of legal notice dated 21.09.2016 issued\n\nby the complainant advocate to the accused calling upon him to\n\npay the amount covered under Ex.P.1.             Ex.P.4 is the returned\n\nRPAD cover, Ex.P.5 is the Statement of account and Ex.P.6 is the\n\nTrue copy of the Resolution.12.      Further, in order to prove the guilt of the accused for\n\noffence undersection 138of Negotiable Instruments Act, 1881,\n\nthe complainant is required to prove the following ingredients\n\nbeyond reasonable doubt:(i)     Accused had issued a cheque in favor of complainant.(ii) The said cheque has been issued in discharge of a\n         debt or liability and is for consideration.(iii) The said cheque has been dishonored on presentation.(iv) Accused has failed to make payment of cheque amount\n       within statutory period of service of legal notice served to\n       him by complainant.7            C.C. No.24649/2016 Judgt.13.   Further, it could be seen from the contents of Ex.P.1 to P.6\n\nthat the cheque issued as per Ex.P.1 by the accused in favour of\n\ncomplainant and the same was dishonoured on 30.08.2016 for\n\n"Funds Insufficient" as per Ex.P.2. It could be further seen that\n\nthe complainant issued legal notice as per Ex.P.3 to the accused\n\nand the same was returned with shara that "Door Locked" as\n\nper Ex.P.4.14.   It is worth to note that though the accused denied the\n\ncomplaint averments while recording substance of accusation but\n\nfailed to cross examine the PW.1 and did not adduced any\n\nevidence on his behalf. Inspite of giving sufficient opportunity to\n\naccused to appear before the court, the accused fails to appear\n\nbefore the court personally or through his counsel and hence the\n\ncounsel for complainant prays to proceed with the case. Further\n\nmore during the course of proceedings accused continuously\n\nremained absent, inspite of issuing court notice to the accused\n\nand intimation to the counsel for accused to appear before the\n\ncourt to prosecute the case. Consequently, cross examination of\n\nPW.1 taken as nil and posted for recording of 313 statement of\n\naccused. Further, it is the duty of the accused to tender himself8             C.C. No.24649/2016 Judgt.available for recording of 313 statement. However, accused fails\n\nto do so. Under the circumstances I lay my hands to the decision\n\nof the Hon'ble High Court of Karnataka in a criminal revision\n\npetition   No.437/10   decided     on   28.06.2012   in   a   case   of\n\n"V.Kulkarni V/s Dakshinamurthy", the Hon'ble High Court of\n\nKarnataka upheld the order of trial court in dispensing the\n\nstatement of accused U/s 313 ofCr.P.C., in N.I.Act proceedings.15.   Furthermore, in a case of "Indian Bank Association V/s\n\nUnion      of India", the Hon'ble Supreme Court has given five\n\ndirections with regard to conduct proceedings U/s 138 of N.I.Act.\n\nOut of the said directions, the direction No.4 is as follows:" 4) The Court should direct the accused,\n             when he appears to furnish a bail bond,\n             to ensure his appearance during trial and\n             ask him to take notice under Section\n             251Cr.P.C. to enable him to enter his plea\n             of defence and fix the case for defence\n             evidence, unless an application is made\n             by the accused underSection 145(2)of\n             N.I.Act for re- calling a witness for cross-examination".As per the above direction after recording the plea of9            C.C. No.24649/2016 Judgt.defence court should fix the case for defence evidence. As such\n\nstatement of accused U/s 313 ofCr.P.C., is dispensed during the\n\ncourse of trial.16.   More so, due to absence of accused and non-representation\n\nby his counsel, they did not cross examine the PW.1 and hence,\n\nthe evidence of PW.1 remained unchallenged. Further, as per the\n\nevidence on record, it is proved by the complainant that the\n\naccused has issued Ex.P.1 cheque in his favour and the said\n\ncheque was dishonored due to "Funds Insufficient" as per Ex.P.2.\n\nThereafter, the complainant has issued legal notice to the\n\naccused at Ex.P.3 and the same was returned with a shara that\n\n"Door closed" as per Ex.P4.17.   Therefore, when there is evidence of complainant regarding\n\nthe issuance of cheque and its dishonor on presentation, when\n\nthere is no evidence on the side of the accused to rebut the\n\npresumption available undersection 118and139of Negotiable\n\nInstrument Act, I am of the view that complainant has\n\nsuccessfully established that cheque has been issued by the\n\naccused towards the discharge of legal liability and was\n\ndishonoured on its presentation for "Funds Insufficient".10            C.C. No.24649/2016 Judgt.18.   On basis of the material evidence placed before me it\n\nclearly establishes that complainant advanced loan amount of\n\nRs.6,00,000/- to the accused as evidenced in Ex.P.5. and the\n\naccused issued the cheque i.e., Ex.P1 to the complainant for an\n\namount of Rs.1,23,438/- to the said loan installment and the said\n\ncheque was presented on the said day it was returned without\n\nhonouring the same on account of 'Funds Insufficient' maintained\n\nin the account of the accused. Further on perusing the EX-P4\n\nreturned RPAD cover and EX-P3 the legal notice all these\n\ndiscloses that, inspite of the intimation of the dishonour of\n\ncheque accused did not comply the demand made in the legal\n\nnotice.   All these facts clearly establishes that, accused\n\ncommitted an offence undersection 138of N.I. Act and\n\naccordingly, I answered this point in the Affirmative.19.   Point NO.2:-    Having held the complainant has proved\n\npoint No.1, the next aspect that arises for my consideration is\n\nregarding sentence to be imposed on the accused for having\n\ncommitted    an   offence   punishable   undersection    138of\n\nNegotiable Instrument Act. It could be seen from the materials\n\nthat the accused had issued cheque on 23.08.2016 and made\n\nthe complainant to suffer for want of funds in his hands so far11          C.C. No.24649/2016 Judgt.about nearly 04 years 5 months. So I am of the opinion that it is\n\nrequired to direct the accused to pay the compensation to the\n\ncomplainant and in that event only it will meet the ends of\n\njustice.    Hence, for the foregoing reasons and finding to point\n\nNo.1, I proceed to pass the following:ORDER\n              By invoking the power conferred undersection 255(2)of Cr.P.C., the accused is\n           convicted and sentenced to pay a fine of\n           Rs.1,56,766/-   for    the   offence   punishable\n           U/S.138of N.I. Act and in default to pay the\n           fine   amount    the    accused   shall   undergo\n           simple Imprisonment for one year.Further, Acting undersection 357(1)(b)of Cr.P.C. the fine amount of Rs.1,51,766/- on\n           recovery shall be paid to the complainant as\n           compensation.Further, accused is directed to deposit\n           the fine amount of Rs.5,000/- to the State\n           out of fine amount.Bail bond and surety bond of the\n           accused shall stand cancelled.Supply a free copy of this judgment to\n           the accused.12              C.C. No.24649/2016 Judgt.Issue    conviction      warrant       against\n          accused.(Dictated to the Stenographer directly on computer, typed by her, corrected\nby me, signed then pronounced in the open court on this the 08 th day of\nFebruary, 2021.)\n\n\n\n\n                                           (Reshma H.K.)\n                                        XXI ACMM, Bengaluru\n\n                              ANNEXURE1.    List of witnesses           examined       on   behalf     of   the\n      complainant:PW-1          :      Mr. Gaviyappa2.    List of witnesses examined on behalf of the accused:NIL3.    List of   documents             marked        on     behalf     the\n      complainant:Ex.P.1        :      Original Cheque\n      Ex.P.1(a)     :      Signature of accused\n      Ex.P.2        :      Return memo\n      Ex.P.3        :      Legal Notice\n      Ex.P.4        :      Returned RPAD cover\n      Ex.P.5        :      Statement of Account\n      Ex.P.6        :      True copy of the Resolution.4.    List of documents marked on behalf of the accused:NIL\n\n\n\n                                         (SMT.RESHMA H.K.)\n                                        XXI ACMM, Bengaluru