Bangalore District Court
Smt. Girija vs Sri. R.K. Surendra Babu on 3 January, 2023
KABC020138242020
IN THE COURT OF THE JUDGE COURT OF SMALL
CAUSES AND A.C.M.M, AT BENGALURU
DATED THIS THE 03rd DAY OF JANUARY-2023
PRESENT:
SRI.SOMASHEKARA.A,B.A.,L, L.L.M.
SMALL CAUSES JUDGE & MACT
CC No.2988/2020
Complainant: Smt. Girija,
W/o late H.L. Basavaraju,
Aged about 76 years,
R/o No. 938, 29th main,
2nd Block, Jnanabharathi,
Nagadevanahalli, kengeri,
Bangalore- 560056.
(By Sri. G.S. Srinivas- Adv.)
-Vs-
Accused: Sri. R.K. Surendra Babu,
S/o Late R. Krishna Chetty,
Aged about 64 years,
R/o No. 36, Suri's, Ground Floor,
5th Main, 10th Cross,
Thyagarajnagar,
Bengaluru-560028.
(By Sri. Vishwanath Sabarad-Adv)
Judge Sign.
2 CC. No.2988/2020
Judgment
JUDGMENT
This case is instituted by the complainant viz., Smt.Girija, Under Section 200 of Cr.P.C. stating that she has taken the house property on mortgage bearing Flat No. B-2, No.36, Suri's, 3rd Floor, 5th Main, 10th Cross, T.R. Nagar, Bangalore- 560028 from the accused and he had paid a lump sum amount of Rs.22,00,000/- as mortgage amount. Further complainant has vacated the said building and the accused returned a part amount paid by the complainant and further took time to pay the balance amount of Rs.2,10,000/- and thereby accused agreed to pay the said amount and issued cheque bearing No.001592 dated 10.12.2019 for Rs.2,10,000/- drawn on Karur Vysya Bank Limited, Basavanagudi Branch, Bengaluru. As per the instructions of the accused, she has presented the said cheque through her bank but, the same was returned dishonoured by the Judge Sign.
3 CC. No.2988/2020Judgment bank for the reasons "Funds Insufficient" vide memo dated 02.03.2020. Thereafter, she got issued a demand notice dated 06.03.2020 through her counsel to the accused calling upon him to pay the cheque amount. The said notice was served to the accused and accused has issued an untenable reply dated 23.03.2020. Hence, it is alleged that the accused has committed an offence punishable Under Section 138 of N.I.Act.
2. My Predecessor in Office by taking cognizance for the offence punishable U/Sec.138 of N.I. Act, registered the case as PCR. Sworn statement of complainant was recorded. Thereafter, by perusing the averments of complaint, documents, this court has registered the case as CC in register No.3 and issued summons to accused. In pursuance of summons accused appeared through his Advocate and he is on bail. Plea Judge Sign.
4 CC. No.2988/2020
Judgment read over accused pleaded not guilty and claimed to be tried.
3. Thereafter, complainant in order to prove his case, she examined herself as PW1 and got marked documents as per ExP1 to P6 and got examined Power of attorney holder as PW2 and got marked Ex.P7 document. Thereafter, statement of accused u/Sec. 313 of Cr.P.C. was recorded. PW1 was cross-examined by the accused, thereafter he has not turned up and not adduced his defense evidence.
4. Heard the arguments and perused the materials on record.
5. The following points are arise for my consideration:
1. Whether the complainant proves that beyond reasonable doubt the accused towards mortgage balance amount had issued Ex.P1/cheque for Rs.2,10,000/-
and on its presentation, the same was Judge Sign.
5 CC. No.2988/2020Judgment got bounced for the reasons "Funds Insufficient" and inspite of legal notice the accused did not paid the cheque amount and thereby the accused is guilty for the offence punishable under Section U/Sec. 138 of N.I.Act?
2. What order?
6. My findings on the above points are as under:
Point No.1 : In the Affirmative; Point No.2 : As per the final order;
for the following:
REASONS
7. Point No.1:- Existence of legally enforceable debt is a sine-qua-non for prosecuting the case U/Sec. 138 of N.I.Act. For convenient purpose the essential ingredients to constitute offence U/Sec. 138 of N.I.Act is summarized as below:
i) A cheque was issued
ii) The same was presented
iii) But it was dishonoured Judge Sign.6 CC. No.2988/2020
Judgment
iv) A notice in terms of said provision was served on the person sought to be made liable and
v) Despite of notice, any payment was made nor other obligations, if any work compared 15 days from the date of the receipt of the notice.
8. It is the core contention of the complainant that he had taken house property of the accused for mortgage of Rs.22,00,000/-. Subsequently, he had vacated the said house, at that time the accused repaid part payment and for remaining balance of Rs.2,10,000/- he had issued cheque/Ex.P1, on its presentation the same is got dishonoured for the reasons "Funds Insufficient". Inspite of notice, the accused failed to pay the cheque amount. Hence, it is alleged that the accused has committed an offence punishable U/Sec. 138 of N.I.Act.
9. In order to bring home the guilt of the accused, the complainant herself examined as PW.1 and Judge Sign.
7 CC. No.2988/2020Judgment reiterated the contents of the complaint in his chief examination. In support of his oral evidence he has placed the documentary evidence at Ex.P1 to 7 documents. During the course of proceedings, the complainant executed Power of Attorney in favour one Dayananda to prosecute her case. Since the complainant being aged about 76 years she could not able to appear before this Court. By considering these materials my learned predecessor while order dated 25.02.2022 was pleased to allow the application and permitted said PA Holder to proceed with the matter and accordingly he has filed his evidence an affidavit and examined as PW.2.
10. In respect of documentary evidence of the complainant is concerned Ex.P1 is the cheque in question, as could be seen from the said documents, it appears that the complainant has presented the said cheque within the period of limitation from the date of Judge Sign.
8 CC. No.2988/2020Judgment its issuance. Ex.P2 is the endorsement issued by the bank by intimating that the cheques got dishonoured for the reasons "Funds Insufficient" in the accused account. Ex.P3 is the office copy of the legal notice, issued to the accused in compliance with Section 138 of N.I.Act. Ex.P4 is the postal receipt. Ex.P5 is the postal acknowledgment. Ex.P6 is the reply notice and Ex.P7 is the GPA.
11. In addition to the oral and documentary evidence the learned counsel for the complainant vehemently argued that the complainant has complied with all the requirements of under Section 138 of N.I.Act and thus he prayed for conviction of the accused.
12. On the other hand, the accused had taken a specific defense that he had paid entire mortgage amount to the complainant. Towards security of the Judge Sign.
9 CC. No.2988/2020Judgment mortgage amount the accused has issued Ex.P1/cheque at the inception of the mortgage property. It is specifically contended that the complainant is liable to pay maintenance charge of Rs.45,000/- and painting charges of Rs.20,000/- and repair charges of Rs.15,000/-, in all the complainant was liable to pay Rs.90,000/- to the accused. It is further contended that on payment of last installment of Rs.6,00,000/-, the complainant assured that she will return the cheque in question which was kept in her home but she was not done so, instead the complainant misused the said cheque and got filed the present complaint.
13. Based on this defense, the PW1 was thoroughly cross examined and suggestions have been posed to PW1, but he has categorically denied the same. Hence, mere suggestions without any documentary evidence Judge Sign.
10 CC. No.2988/2020Judgment this Court cannot presume that the complainant is liable to pay in all an amount of Rs.90,000/- towards maintenance, painting and repair charges.
14. It is worth to note that the accused has not produced the copy of the mortgage deed to ascertain the terms and conditions of the said mortgage. In the event the complainant is liable to pay an amount of Rs.90,000/- towards maintenance, painting and building repair charges, certainly the mortgage deed would have been placed before the Court and through which this Court can point out the terms of the said mortgage deed. Without any documentary evidence this court cannot presume or assume the things as pleaded by the accused. Hence, the defense set out by the accused doesnot holds the water.
Judge Sign.
11 CC. No.2988/2020Judgment
15. It is worth to note here that the accused has admitted his signature on the cheque. Therefore, in the present case the cheque and the signature has been accepted by the accused, the presumption U/Sec.139 of N.I.Act would operate. Thus, the burden was on the accused to disprove the cheque or the existence of any legally enforceable debt or liability. According to the accused Ex.P1 was issued towards security of mortgage and the said was misused by the complainant. If we believe the story of the accused, he has got all the right to take action against the complainant for having misused the said cheque but he has not done so for the reasons best known to him. Therefore, the story brought by the accused is unworthy of credit, apart from being unsupported by any evidence.
16. As discussed above, there is no dispute regarding issuance of cheques and signature. When once Judge Sign.
12 CC. No.2988/2020Judgment issuance of cheques and signatures are not disputed this court is required to draw a presumption as envisaged U/Sec.118 and U/Sec.139 of N.I.Act.
17. At this juncture, I would like to rely upon the citation reported in 2022 (3) AKR 381 - Negotiable Instruments Act (26 of 1881), Ss.138, U/Sec.139 of N.I.Act - cheque dishonour - legally enforceable debt
- Presumption as to - cheque issued by accused towards repayment of loan availed from the complainant, to fulfill family commitments and clear hand loan, dishonoured - Accused admitted his signature on cheque - he also categorically admitted receipt of notice by his office incharge and that same was handed over to him - No reply given to demand notice - Though accused claimed that cheque belonging to him was lost from business concern run Judge Sign.
13 CC. No.2988/2020Judgment by his wife, she was not examined - No complaint filed that cheque was lost - Merely because complainant did not produce his IT returns, his financial capacity to give loan cannot be doubted.
18. Therefore, considering all these aspects of the case and totality of the circumstances and on careful and meticulous appreciation of evidence adduced on behalf of complainant, the complainant has successfully established beyond all reasonable doubt that he had had advanced loan to the accused and accused for due discharge of amount, he had issued cheque under Ex.P1. On the other hand, accused has failed to rebut the presumption available in favour of complainant with regard to the existence of legally recoverable debt under Ex.P1 cheque. Thus, this Court is of the opinion that complainant has proved the ingredients of Sec.138 of N.I.Act and proved that accused has committed an Judge Sign.
14 CC. No.2988/2020Judgment offence punishable Under Section 138 of N.I.Act. Hence, for the above reasons, I answer Point No.1 in the Affirmative.
19. Point No.2: As discussed in point No.1, the complainant has proved the guilt of the accused. It is worth to note that the offence is of the nature of quasi civil and quasi criminal wrong. Hence, it is proper to award sentence of fine only instead of imposing sentence of imprisonment to the accused. At this juncture, it is worth to place the reliance of recent decision of Hon'ble Apex Court reported in 2020 (1) SCC 283 Kalamani Text. and another V/s. P Balasubramaniam, Wherein the Hon'ble Apex court at head note D has held that Negotiable Instrument Act 1881- Sec. 138 - compensation under - there needs to be a consistent approach towards awarding it compensation and unless there exist special Judge Sign.
15 CC. No.2988/2020Judgment circumstance, the court should uniformly Levy fine of up to the double of cheque amount along with simple interest at 9%. So considering the pendency of the case from 2020 and loan transaction this court, feels an amount of Rs.2,60,000/- can be awarded as compensation to the complainant, which would meet the ends of justice. Thus for the above reasons, I proceed to pass the following:
ORDER Acting under Section 255[2] of Cr.P.C, the accused is hereby convicted for the offence Punishable U/s. 138 of the N.I. Act.
The accused is sentenced to pay total fine amount of Rs.2,65,000/-. In default of payment of fine amount, the accused shall under go Simple Imprisonment for a period six months.
Judge Sign.16 CC. No.2988/2020
Judgment After deposit of fine amount an amount of Rs.2,60,000/- shall be paid to the Complainant as compensation as provided U/s.357 (1) Cr.P.C. The remaining Rs.5,000/- be appropriated to the state as fine.
The bail bond of the accused is hereby stand cancelled.
Office is directed to furnish free copy of this judgment to the accused.
(Dictated to the stenographer on computer, corrected and then pronounced by me in the open court on this the 03rd day of January, 2023.) (Somashekara A.) Judge, Court of Small Causes & ACMM Bengaluru.
ANNEXURE List of Witnesses examined on behalf of complainant:
PW1 Smt.Girija
PW2 Sri. A.S. Dayananda
Judge Sign.
17 CC. No.2988/2020
Judgment
List of Documents marked on behalf of complainant:
Ex.P1 Cheque Ex.P1(a) Signature of accused Ex.P2 Bank endorsement Ex.P3 Notice Ex.P4 Postal receipt Ex.P5 Postal acknowledgment Ex.P6 Reply notice Ex.P7 GPA
List of Witnesses examined on behalf of accused:
NIL List of documents marked on behalf of accused:
NIL Judge & ACMM, Court of Small Causes, Bengaluru.
Judge Sign.