Bangalore District CourtSmt. Savitha K.R vs Smt. Mamatha on 1 June, 2017IN THE COURT OF THE XII ADDL. CHIEF
    METROPOLITAN MAGISTRATE, AT BENGALURU
           Dated this the 1st day of June 2017
     Present:   Sri. Rajkumar .S.Amminbhavi.,   B.Com., LLB (Spl)

                XII Addl. Chief Metropolitan Magistrate,
                Bengaluru.
                  C.C.No. 1296/2016

Complainant:         Smt. Savitha K.R
                     W/o. Nagaraju .H.D
                     Aged about 36 Years
                     R/at. No.168, 2nd Main Road
                     GKW Layout
                     Peenya 2nd Stage
                     Bengaluru-560 058.

                     (By Rajanna. Adv)

                         - Vs -
Accused:             1. Smt. Mamatha
                     W/o. Dinesh
                     No.S 453, 12th Cross
                     8th Main, Bharath Nagar
                     2nd Stage, Near Karnataka Bank
                     Magadi Road
                     Bengaluru-560 091.

                     2. M/s. HPCL CAB INC
                     No.2, Puttaraju Layout
                     Kalkere Bannerghatta Road
                     Near AMC Engineering College
                     Bengaluru-560 083.
                     Rep. By it's Proprietor
                     Smt. Mamatha


                     (By Bhagyalakshmi .S. Adv)

Offence              U/s138 ofNegotiable
                     Instruments Act.
                                   2                    C.C. 1297/2016




Plea of the accused        Pleaded not guilty.

Final order                Conviction


                              ******
                            JUDGMENT1.    The Complainant filed this Complaint against the
accused U/s.200 ofCr.PCfor the offence punishable U/s 138
of N.I.Act.2.    The brief facts of the case of the complainant are; that,
the complainant and the accused have entered into the
agreement for money lent over business purpose/Cab
investment agreement on 14.01.2015 relating to transaction
of Cab Service, the accused being the proprietor of HBCL Cab
Corporation as per the agreement Clauses Cab Service
business, the accused has issued two cheques i.e., (1) cheque
bearing       No.734873,   dated:10.08.2015      for   a   sum    of
Rs.45,000/- (2) cheque bearing No.734875, dated:10.08.2015
for a sum of Rs.48,000/- both the cheques drawn on State
Bank of India, Malagala Main Road, Nagarabhavi 2nd Stage,
Bengaluru-560 091 and the said cheques had issued for
discharge of legal liability and while the issuing the said
cheques the accused requested the complainant to present
said cheques on 07.11.2015 by that time she would keep
sufficient funds in her bank account and the said cheques
would be honoured.          Then, as per the assurance and
instructions of the accused, the complainant presented the3                    C.C. 1297/2016above said cheques on 07.11.2015 through her banker Bank
of India, Peenya Mid Corporate Branch, Bengaluru, but the
said cheques were dishonoured with an endorsement as
"Insufficient Funds" on 09.11.2015 and thereafter, the
complainant has informed the said fact to the accused but
the accused did not responded the same, the complainant
without any other alternative and efficacious remedy had
issued the legal notice through her counsel on 04.12.2015 by
way of RPAD calling upon him to pay the said amount within
15 days from the date of receipt of the said legal and it was
duly served to the accused.          Despite service of the legal
notice, the accused neither pay the said amount nor replied
it.   Hence, the complainant had constrained to file the
present complaint against the accused for the offence
punishable underSection 138of N.I.Act., which is well within
time and perused the documents and taken cognizance and
registered the case in PCR.3.    After   recording   of   the    sworn   statement   of   the
complainant and complaint registered in criminal case
registered and after issuance of summons to the accused,
pursuant to the summons the accused had appeared before
this Court through her counsel and enlarged bail on her. The
substance of accusation was recorded and read over the
accused in her vernacular. She pleaded not guilty. Hence,
claims for trail.4.    In order to prove the case of the complainant, the
complainant got herself examined as PW.1 & got 104                       C.C. 1297/2016documents marked as Ex.P.1 to Ex.P.10. When the case was
posted for cross of PW-1.                Insipite of giving sufficient
opportunity, neither the accused nor his counsel, they have
failed to cross-examine the PW-1.              Hence, cross of PW-1 is
taken as no cross.       Thereafter, the accused had failed to
appear before this Hon'ble Court and issued NBW to the
accused and same is un-executed and accordingly, his bail
bond stands cancelled and the cash surety amount has been
forfeited to the state.       Since the accused has not at all
challenged the evidence of the PW-1 and he has not at all
filed the application for re-calling the PW-1 and the present
complaint is summary trail and quasi-criminal in nature.
Hence, recording of the statement of accused underSection
313of Cr.P.C is dispensed with. As per the new amendment
Provision underSection 145(2)of N.I.Act.             Inspite of giving
sufficient    opportunity     the    accused       failed    to   file   the
application underSection 145(2)N.I.Act for adducing defence
evidence. Hence, defence evidence is taken as no evidence.
Since the present complaint in summary trail in nature.                    I
am relying the citation reported in AIR 2014 SC 2528
Indian Bank Association & others V/s. Union of India
and others- Negotiable instructions Act (26 of 1881),Section 138,143,145-dishonour of cheque-summary
trail-directions given to trail Court to follow procedures
for speedy and expeditious disposal of cases falling
underSection 138of N.I.Act. Thereby appearance of the
accused      is   dispensed   with       and    case   was    posted     for
arguments.5                   C.C. 1297/2016(As per the judgment passed by their lordship in
Cr.R.P.No.1585/2009 on 12.03.2013 of Hon'ble High
Court, Bangaluru conducting of denova trial does not
arises)5.   Heard arguments.6.   The following points arise for my determination;1.   Whether the complainant proves that the
          accused had issued cheques (1) cheque
          bearing No.734873, dated:10.08.2015 for
          Rs.45,000/-,      (2)   cheque     bearing
          No.734875, dated:10.08.2015 for a sum of
          Rs.48,000/-, both the cheques drawn on
          State Bank of India, Malagala Main Road,
          Nagarabhavi 2nd Stage, Bengaluru, for
          discharge of the amount and when the said
          cheques presented for encashment, they
          were dishonoured with an endorsement
          "Funds Insufficient" and after issuance
          of the legal notice she fails to repay the
          said amount and Thereby, the accused
          have committed offence punishable U/s.138 N.I.Act?2.   What order ?6.   My answer to the above points are;Point No.1       :       In the Affirmative
          Point No.2       :       As per final order for the
                                   following;6                  C.C. 1297/2016REASONS7.   POINT NO.1: On perusal of the evidence of PW-1 who is
GPA holder of the complainant, he has reiterated as per the
averments made in the complaint and he has got marked 10
documents namely, GPA which has been executed by the
complainant to prosecute the present complainant and same
is marked as Ex.P1, two cheques which are marked as Ex.P.2
and Ex.P3, the signature of the accused therein which are
marked as Ex.P2(a) & Ex.P3(a), two bank endorsement which
are marked as Ex.P4 to Ex.P5, the office copy of the legal
notice which is marked as Ex.P6, two postal receipt which
are marked as Ex.P7 and Ex.P8, the postal acknowledgment
which is marked as Ex.P9, the return the postal cover which
is marked as Ex.P10.8.   Though the case was posted for cross of PW-1. Inspite
of giving sufficient opportunity neither counsel for the
accused nor the accused, they have failed to cross-examine
the PW-1.    Hence, cross of PW-1 is taken as no cross.
Thereafter, the accused had failed to appear before this Court
and to secure the appearance of the accused before this
Court and issued NBW to the accused and same is un-
executed. Thereafter, also the accused remained absent and
his bail stands cancelled and the cash surety amount has
been forfeited to the state.       The accused had not at all
challenged the evidence of PW-1 and the accused had not
filed any application for re-calling the PW-1 for his cross-7                    C.C. 1297/2016examination, thereby, evidence of the PW-1 is un-challenged
one.   Since the present complaint is summary trial and
quasi-criminal in nature.          Thereby, recording the of the
statement of accused underSection 313of Cr.P.C., is
dispensed with. As per the new amendment the accused has
not filed any application underSection 145(2)of the N.I.Act
for defence evidence. Therefore, non-filing the application by
the counsel for the accused for defence evidence same is
taken as no evidence. Since the present complaint is
summary trail in nature. Thereby appearance of the accused
is dispensed with and case was posted for arguments.9.     On perusal of the averments made in the complaint
and also documents produced by the complainant is that, it
is an admitted fact that, even after issuance of the legal
notice by the complainant to the accused prior to filing of the
said complaint, the accused has not gave any reply notice.
Therefore,   prior   to   filing   of   the   said   complaint    the
complainant had complied all the necessary ingredients
underSection 138of N.I.Act. Though the accused has
appeared before this Court through his counsel and enlarged
her on bail, she pleaded not guilty and claim for trail and to
substantiate the said defence she has not cross-examined the
PW-1 and inspite of giving sufficient opportunity she has
failed to adduce his defence evidence and she has not
produced any iota of documentary evidence, except her oral
testimony. Since the evidence of PW-1 is unchallenged one.
On perusal of the Ex.P2 & Ex.P3 there is no any ambiguity.8                    C.C. 1297/2016Since the complainant had proved his case by adducing
cogent and corroborative evidence, the accused had failed to
cross examine the PW-1 and failed to defend her case by
adducing her defence evidence.10.   It can be presumed that, no any ordinary prudent man
will issue signed blank cheque to any other persons without
having monetary transaction between themselves. As per theSection 73of the Indian Evidence Act., this Court had got
having ample power with respect to compare the admitted
signature and disputed signature. Therefore, on perusal of
the Ex.P2 2 Ex.P3 therein signature of the accused Ex.P2(a)
& Ex.P3(a) the accused had put her signature at the time of
filing the vaklath and enlarged her on bail and the accused
had put her signature at the time of recording of her
accusation are one and the same. Hence, the probability of
the preponderance is higher on the side of the complainant,
rather than the accused.11.   Ordinarily   offence   underSection   138of   N.I.Act
"mensrea" is not essential, underSection 138of N.I.Act , is
bring into operation rule of strict liability, whereas, "mensrea"
is essential ingredients in criminal offences. Therefore, The
complainant has proved her case against the accused, since
offence underSection 138of N.I.Act element of Mensrea has
been excluded in general public interest to curb the instances
of dishonouring of cheques and to lend the credibility to the
commercial transaction.      Therefore, in this case also the9                    C.C. 1297/2016accused   knowing     fully   she   has   due   amount    to   the
complainant and she has issued the Ex.P2 & Ex.P3 for
discharge the due amount to the complainant.           Since the
present complaint is summary trial and quasi-criminal in
nature, it is like recovery proceedings and punishment is fine
or in default of it simple imprisonment.           Hence, in the
absence of the accused, the Court will pass the judgment.12.   Hence, in the light of the above observation, the
complainant has successfully proved that, the accused has
committed offence punishable underSection 138of N.I. Act
with these reasons, I am the opinion that, the complainant
successfully established before the Court, the accused has
issued Ex.P2 & Ex.P3 to the complainant for the legally
recoverably debt of Rs.93,000/- and the accused is not liable
to pay any fine amount to the state, since the cash surety
amount has been deposited by the accused at the time of
enlarged on bail and inspite of issuance of NBW she has
failed to appear before this Court and accordingly, cash
surety amount has been already forfeited to the state.
Therefore, I answer the point No.1 in the affirmative.13.   Point No.2 :-     In view of my findings on Point No.1 in
the affirmative, I proceed to pas the following...ORDER

                 Acting U/s 255(2)Cr.P.C., the accused is
           convicted for the offence punishable U/s. 138
           ofN.I. Act.10                           C.C. 1297/2016The       accused         shall      pay       a     fine      of
                Rs.93,000/-. In default of payment of said fine
                amount, the accused shall undergo simple
                imprisonment for one month.Further, ordered that, said fine amount of
                Rs.93,000/- shall be paid to the complainant
                as compensation, as provided U/s 357 ofCr.P.C.,


                        The bail bond and surety bond of the
                accused stands cancelled.Free copy issued to the accused.(Dictated to the Stenographer, transcript thereof is computerized and print out taken by
her is verified, corrected and then pronounced by me in the open Court on this the 1st day
of June 2017).(Rajkumar.S.Amminbhavi)
                            XII Addl. Chief Metropolitan Magistrate,
                                        Bengaluru City.ANNEXURE

List of witnesses examined on behalf of the complainant:PW.1                     Nagaraju .H.D

List of documents exhibited on behalf of the complainant:Ex.P.1                   GPA
Ex.P.2 & 3               Cheques
Ex.P.2(a) & 3(a)         Signatures of the accused
Ex.P.4 & 5               Two bank endorsement
Ex.P.6                   Office copy of the legal Notice
Ex.P.7 & 8               Two postal receipts
Ex.P.9                   The postal acknowledgment11                  C.C. 1297/2016Ex.P10          The return postal coverList of witnesses examined on behalf of the accused :NIL

List of documents exhibited on behalf of the accused :NIL




                  XII Addl. Chief Metropolitan Magistrate,
                              Bengaluru City.12                 C.C. 1297/2016(vide separate judgment pronounced in the open Court)

                         ORDER
             Acting U/s 255(2)Cr.P.C., the accused is
        convicted for the offence punishable U/s. 138
        ofN.I. Act.The       accused   shall   pay   a   fine   of
        Rs.93,000/-. In default of payment of said fine
        amount, the accused shall undergo simple
        imprisonment for one month.Further, ordered that, said fine amount of
        Rs.93,000/- shall be paid to the complainant
        as compensation, as provided U/s 357 ofCr.P.C.,13                  C.C. 1297/2016The bail bond and surety bond of the
accused stands cancelled.Free copy issued to the accused.XII Addl. Chief Metropolitan Magistrate,
                   Bengaluru City.14   C.C. 1297/2016Heard
Inference