Bangalore District Court
Sri.Umesh.B vs Smt.Asha Anand on 2 September, 2022
1 C.C. No.12427/2020 Judgt.
KABC030482732020
Presented on : 08-10-2020
Registered on : 08-10-2020
Decided on : 02-09-2022
Duration : 1 years, 10 months, 25 days
IN THE COURT OF THE XXI ACMM, BENGALURU
Dated: This the 02nd day of September, 2022.
Present:
Smt. Reshma H.K., B.A.,LL.B.,
XXI ACMM, Bengaluru
C.C.No.12427/2020
Complainant : Sri.Umesh.B.,
S/o Basavaraj,
Aged about 44 years,
Residing at Kengeri Hobli,
Kanakapura Main Road,
Bangalore - 560 062.
(By Sri.Y.V.R., adv.)
V/s
Accused : Smt.Asha Anand,
W/o Anand,
Aged about 35 years,
R/at: No.1023, Gokula Apartment,
Vasanthapura (Gubbalalla),
Bangalore - 560 062.
(By Sri.S.D.R., Adv.)
2 C.C. No.12427/2020 Judgt.
JUDGMENT
This is the complaint filed by the complainant under section 200 of Cr.P.C. against the accused for the offence punishable under section 138 of Negotiable Instruments Act and to take cognizance of the offence to punish the accused in accordance with law.
2. The factual matrix of the complaint is that the accused and complainant are well known to each other since several years. With this acquaintance, during the first week of October 2019, the accused approached the complainant and requested for hand loan of Rs.9,00,000/- to meet her business and financial commitments and also assured that she would repay the same within 2 months. Accordingly, the complainant paid an amount of Rs.9,00,000/- by way of cash. Further the case of the complainant is that, after expiry of the said period, complainant approached the accused to repay the above said amount, towards repayment of the said amount accused issued a cheque bearing No.409860 dated:10.01.2020 for a sum of Rs.4,00,000/- drawn on Axis Bank, Jayanagara, 2nd Block, Bengaluru and another cheque bearing No.935695 dated:09.01.2020 for a sum of Rs.5,00,000/- drawn on State Bank of India, Jayanagara 2nd Block, Bengaluru in favour of complainant. 3 C.C. No.12427/2020 Judgt.
3. Further, as per the accused instructions, the complainant has presented the said cheque for encashment through his banker i.e., Canara Bank, Konanakunte Branch, Bengaluru, but to the shock and surprise of the complainant said cheques were returned as 'Funds Insufficient' and 'Payment Stopped by Drawer' as per the bank memo dated:04.02.2020. Thereafter, the complainant issued a Legal notice dated:27.02.2020 to the accused through R.P.A.D calling upon him to pay the amount covered under the cheque within the stipulated period and the same was served to the accused. After service of notice, accused replied to the said notice, but failed to repay the amount covered under the cheque. Hence, the complainant filed the present complaint against the accused for the offence punishable under section 138 of Negotiable Instrument Act.
4. This court after perusing records, cognizance of the offence was taken and there on sworn statement of the complainant was also recorded. The criminal case has been registered against the accused for the offence punishable under section 138 of N.I. Act.
5. Upon service of summons, accused appeared through his counsel and enlarged on bail. Thereafter, the court has recorded the plea of the accused and the accused did not pleaded guilty of 4 C.C. No.12427/2020 Judgt. the offence and claims to be tried. Hence, the case was posted for trial.
6. The complainant in order to prove his case, he himself examined as PW-1 and got marked 08 documents i.e., Ex.P-1 to Ex.P-08. Original Cheques marked as Ex.P.1 and Ex.P.3, Signature of accused marked as Ex.P.1(a) and Ex.P.3(a), Return Memos marked as Ex.P.2 and Ex.P.4, Legal notice marked as Ex.P.5, Postal Receipt marked as Ex.P.6, Reply notice marked as Ex.P.7 and Absolute Sale Deed marked as Ex.P.8 and Statements marked as Ex.P.9 and Ex.P.10.
7. After completion of the evidence of complainant, the substance of the evidence has been read over and explained to the accused under section 313 of Cr.P.C. the accused is denied the incriminating evidence available against him and he choose to lead evidence on his behalf and examined as DW.1 and got marked Ex.D.1 to Ex.D.3.
8. The advocate for accused filed written argument and perused the materials placed on record. The following points would arise for consideration;
5 C.C. No.12427/2020 Judgt.
1. Whether the complainant proves that the accused issued cheque bearing No.409860 dated:10.01.2020 for the legally enforceable debt of Rs.4,00,000/- and another cheque bearing No.935695 dated:09.01.2020 for the legally enforceable debt of Rs.5,00,000/-, in favour of complainant and they were presented within the validity period and same are returned unpaid on account of "Payment Stopped by Drawer" and "Funds Insufficient" and thereby caused the dishonor of cheques and inspite of legal notice, the accused fail to make payment and thereby committed an offence punishable under section 138 of Negotiable Instrument Act?
2. What Order?
9. My findings on the above points are as under:-
Point No.1: In the "Affirmative"
Point No.2: As per the final orders for the following:
BRIEF STATEMENT OF REASONS FOR THE DECISION
10. Point No.1:
On over all perusal of the oral and documentary evidence adduced by both the parties, it reveals that the case of the 6 C.C. No.12427/2020 Judgt. complainant is that, during the first week of October 2019, the accused approached the complainant and requested for hand loan of Rs.9,00,000/- to meet her business and financial commitments and also assured that she would repay the same within 2 months. Accordingly, the complainant paid an amount of Rs.9,00,000/- by way of cash. After expiry of the said period, complainant approached the accused to repay the above said amount, towards repayment of the said amount accused issued a cheque bearing No.409860 dated:10.01.2020 for a sum of Rs.4,00,000/- drawn on Axis Bank, Jayanagara, 2nd Block, Bengaluru and another cheque bearing No.935695 dated:09.01.2020 for a sum of Rs.5,00,000/- drawn on State Bank of India, Jayanagara 2nd Block, Bengaluru in favour of complainant. Further the case of the complainant is that, he has produced the said cheque to the bank and same were bounced due to 'Funds Insufficient' and 'Payment Stopped by Drawer'.
Thereafter, though the complainant issued legal notice to the accused to pay the said amount, but the accused failed to repay the amount covered under the cheques.
11. On the other hand, the version of the accused is that, she is admitting the issuance of cheque and its signature. But 7 C.C. No.12427/2020 Judgt. contended that she has approached the wife of complainant for hand loan of Rs.6,00,000/- and she had lent Rs.1,00,000/- during January-2014, Rs.3,00,000/- during April-2016, Rs.1,00,000/- during May-2016 and Rs.1,00,000/- during 2016. Further accused contended that the complainant's wife obtained two blank cheques as a security. Further, the very defence of the accused is that she had repaid Rs.5,50,000/- to the wife of complainant on several occasions. Inturn the wife of complainant returned only one cheque and kept another cheque by stating that she has missplaced the said cheque. Hence, accused initiated the complainant wife to present the said cheque for remaining Rs.50,000/- with prior intimation. But, during 2019 the complainant approached the Subramanyapura Police Station and accordingly NCR.No.618/19 registered and after recording the statement of accused regarding remaining payment of Rs.50,000/- and issued endorsement thereon. Inspite of this complainant has presented the cheque without giving prior intimation.
12. As per the above evidence, the accused admitted the issuance of Ex.P.1/Cheque and its signature. Under the circumstances, it is worth to mention that once the cheque 8 C.C. No.12427/2020 Judgt. relates to the account of the accused and he accepts and admits the signature on the said cheque, then initial presumption as contemplated under section 139 of the N.I.Act has to be raised by the court infavour of the complainant.
13. Further, in a decision the Hon'ble Apex court, reported in AIR 2010 SC 1898 in a case of Rangappa V/s Mohan the Hon'ble Apex Court held that:-
"Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant. Therefore, in view of above said deposition, a presumption under section 139 of Negotiable Instruments Act can be drawn in favour of complainant that the said cheque was issued for a valid consideration. Now it is for the accused to rebut the said presumption. It is a settled law that though the onus on the accused to rebut the presumption is that of preponderance of probabilities but still the accused is required to adduce cogent evidence to rebut the presumption. Mere assertions and explanations of fact in the Court will not 9 C.C. No.12427/2020 Judgt. amount to rebuttal of presumption. In order to rebut the presumption under section 139 of N.I. Act, the accused by cogent evidence, has to prove the circumstance under which cheque was issued.
As per the above decision of the Hon'ble Apex Court, when accused admitted the issuance of cheque and its signature on the said cheque, then the burden shifted to the accused to prove that under which circumstances the cheque has been issued to the complainant. Hence, in the present case, complainant is successful in drawing initial presumption available in his favour.
14. Further, to rebut the presumption available to the complainant, the accused placed his defence by way of cross examining the PW.1 and also by examining himself as DW.1 and got marked documents at Ex.D.1 to Ex.D.3. As per the evidence on record, accused admitted the receiving of Rs.6,00,000/- from the complainant's wife. However, accused contended that she has repaid Rs.5,50,000/- out of the said amount and Rs.50,000/- yet to be paid. Accordingly, accused denied her liability towards the amount covered under Ex.P.1/Cheque as alleged in the complaint. With this backdrop of the facts, perused the relevant documents i.e., Ex.D.1 to Ex.D.3 and Ex.P.9 and Ex.P.10. The 10 C.C. No.12427/2020 Judgt. accused relied on Ex.D.1 and Ex.D.2 to prove that she has return Rs.5,49,000/- to the wife of complainant and the remaining due amount is Rs.50,000/- only. Ex.D.1, the true copy of the complaint dated:26.11.2019 given by the complainant to the Subramanyapura Police Station in order to recover the money from the accused. The Ex.D.3, Acknowledgment given by the said police to the complainant and the recitals of Ex.D.3 is as follows;
"ಈ ಮಮಲಕ ನಮಗ ತಳಯಪಡಸಸವದದನನದರ ಉಮದಶ ರವರಸ ಕಮಟಟ ದಮರನಸ ನ ಸಸದ ಕರಸ ದನನಕ 26.11.2019 ರನದಸ ಠಣ ಎನ.ಸ.ಆರ ನನ.628/2019 ರಲ ದಮರಸ ದ , ಆಶರವರನಸ ದಖಲಸದಸ ನ ಠಣಗ ಕರಯಸ ವಚರಸಲಗ ಉಮದಶ ರವರನದ 6 ಲಕ ಹಣವನಸ ನ ದ , ಸಲವಗ ಪಡದದಸ ಅವರಗ ವಪಸ 5 ಲಕ 50,000/- ರಮ ಹಣ ವಪಸ ಕಮಟಸ ಟ ಹಣ ಕಮಟಟರ ಸವದಕಕ ಸವತ ಉಮದಶರವರನದ ಸಹ ಪಡದಸ, ಬಕ ದ , ಈ 6 ಲಕದ ಶಮ 50,000/- ರಮ ಕಮಡಬದಕಗದಸ ಶ ರಟಗಗ ಆ ನ ಕಮಟಟದದ ಸ , 50,000/- ರಮ ಕಮಟಟ ನನತರ ಚಕ ಚಕ ಗಳನಸ ಗಳನಸ ದ , ಈ ನ ವಪಸ ಕಮಡಸವದಗ ಉಮದಶ ರವರಸ ತಳಸದಸ ದಮರಸ ಹಣಕಸನ ವಶ ವಹರವದದ ರನದ ಮನಶ ನಶಯ ಲಯದಲ ಇತಶ ರರ ಮಡಕಮಳಳ ಲಸ ಹನಬರಹ ನದಡರಸತತದ ."
As per the above recitals of Ex.D.3, the accused admitted the receiving of Rs.6,00,000/- from the complainant and also stated that she has repaid the amount of Rs.5,50,000/- to the complainant and due amount is only Rs.50,000/-. Per contra, complainant relied on Ex.P.9 and Ex.P.10, the Complaint 11 C.C. No.12427/2020 Judgt. statement given by the accused to the Subramanya Police Station on 14.01.2020. As per the recitals of these documents, the version of the accused is that out of borrowed amount of Rs.6,00,000/-, she had repaid Rs.5,49,000/- to the complainant and his wife and obtained their signature for acknowledging the receiving of said amount in writing. Further, in the Ex.D.3 also same is reiterated as ;
"ಉಮದಶ ರವರನದ 6 ಲಕ ಹಣವನಸ
ನ ಸಲವಗ
ದ , ಅವರಗ ವಪಸ 5 ಲಕ 50,000/- ರಮ ಹಣ
ಪಡದದಸ
ವಪಸ ಕಮಟಸ
ಟ ಹಣ ಕಮಟಟರ ಸವದಕಕ ಸವತ ಉಮದಶರವರನದ
ದ ,"
ಸಹ ಪಡದಸ, ಬಕ 50,000/- ರಮ ಕಮಡಬದಕಗದಸ
The above averments on Ex.D.3, Ex.P.9 and Ex.P.10 clearly indicates that as per the case of accused, she has obtained the signature of complainant and his wife while repaying the said amount. Furthermore, during the course of cross examination of DW.1, who deposed that complainant has written in Kannada for receiving the amount. However, no such document is produced before the court to show the acknowledgment made by the complainant and his wife. Furthermore, on careful perusal of Ex.P.9 and its recitals discloses that accused is ready to pay Rs.1,50,000/- over a period of five months in three installments of Rs.50,000/- each. Ex.P.9 is the replay given by the accused in 12 C.C. No.12427/2020 Judgt. her own handwriting. As per the averments in Ex.D.3, the statement of the accused is that the balance payment is only Rs.50,000/-, but as per the averments made in Ex.P.9 the balance amount is Rs.1,50,000/-. Hence, there is no clarity on the statement of the accused regarding the defence of repayment made to the complainant as stated supra.
15. Furthermore, the very contention of the accused is that, she has received a hand loan of Rs.6,00,000/- from the complainant's wife, but as per the recitals of Ex.D.3 and Ex.P.9, the accused admitted the receiving of said loan amount from the complainant. Further, during the course of cross examination of DW.1, the counsel for complainant posed a question by way of suggestion that she has received Rs.9,00,000/- from the complainant and for which accused denied the same and deposed that she has received only Rs.6,00,000/-. The relevant extract of the said deposition is as follows;
"ನನಸ ಒಟಸ
ಟ ರಮ.9,00,000/- ಹಣವನಸ
ನ
ದಮರಸದರರನದ ಪಡದದನ ಎನದರ ಸರಯಲಲ . ಕದವಲ
ರಮ.6,00,000/- ರಮಪಯ ಪಡದದನ."
From the above evidence, it is crystal clear that accused obtained loan amount from the complainant itself. It is worth to 13 C.C. No.12427/2020 Judgt. note that in the present case on hand, the complainant successfully drawn the presumption available U/s 118 and 138 of N.I.Act, in his favour as the accused admitted the issuance of cheque and its signature. Mere a distorted version or mere taking up the plea or the defence that he is not liable to pay any amount or he discharge the amount are not sufficient to put back the burden on to the complainant to prove his case beyond reasonable doubt.
16. Furthermore, as per the return memo the Ex.P.1/Cheque dishonoured for the reason 'Payment stopped by drawer', however, there is no explanation from the accused regarding the endorsement as per Ex.P.2. Under the circumstances, I lay my hands to the decision reported in 2002 Crl.L.J 266 (SC), in a case of "M.M.T.C. Ltd. V/s Medchl Chemicals & Pharma (P) Ltd." The Supreme Court reiterated that;
"Even when the cheque is dishonoured by reason of stop payment instructions by virtue of section 139 the Court has to presume that the cheque was received by the holder for the dischage, in whole or in part, of any debt or liability. This being a rebuttable presumption, the accused can thus show that the 'Stop payment' instructions were not 14 C.C. No.12427/2020 Judgt. issued because of insufficiency or paucity of funds. If the accused shows that in his account there was sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, then offence under section 138 would not be made out. Burden of so proving would be on the accused"
17. Further, in a case of Goaplast Pvt Ltd V/s Chico Ursula D'Souza reported in 2004 Crl.L.J 664 (SC), the Hon'ble Supreme Court held that;
"Ordinarily, the stop payment instructions are issued to the Bank by the account holder when there is no sufficient amount in the account. The reason for stopping the payment, however, can be manifold. It is essential that to issue stop payment instructions, there must be funds in the accounts in the first place as on the date of signing of the cheque, the date of presentation of the cheque, the date on which stop payment instructions were issued to the Bank.
15 C.C. No.12427/2020 Judgt.The ratio laid down in the above two decisions are aptly applicable to the instant case as in the entire evidence nowhere the accused produced a single document to show that there was sufficient balance in his account at the time of presentation of the Ex.P.1/Cheque and at the time of issuing stop payment instructions to the bank.
18. Furthermore, during the course of cross examination of PW.1, counsel for accused questioning the PW.1 regarding his financial capacity in lending such an huge amount of Rs.9,00,000/-. On the other hand, the complainant has produced Ex.P.8 and stated that he has received Rs.10,00,000/- out of the sale proceedings under Ex.P.8. It is noteworthy to mention that, though the defence counsel questioning the PW.1 regarding the his financial capacity in lending the alleged amount, but the accused herself admitted that she has received Rs.6,00,000/- from the complainant as a hand loan. Hence, the contention raised by the defence counsel regarding the financial capacity of the complainant holds no water.
19. It is worth to mention that when there is a presumption available in favour of the complainant regarding legally 16 C.C. No.12427/2020 Judgt. recoverable debt and the complainant successfully drawn that presumption, then the burden lies on the accused to prove his contention by adducing cogent evidence. Mere denial of the complainant case is not sufficient to prove the innocence of the accused. At this juncture, it is worth to relay on the decision passed by the Hon'ble Supreme Court of India in the case of T. Vasanthakumar -Vs- Vijayakumari reported in 2015(4) KCCR 2881 (SC), wherein which it is held that -
"Sections 138 and 139-Acquittal-if justified-Accused not disputing issuance of cheque and his signature on it, Plea that it was issued long back as security and that loan amount was repaid-Not supported by any evidence- Fact that date was printed, would not lend any evidence to case of accused-Acquittal not proper."
20. Further, the decision passed by the Hon'ble Supreme Court of India in the case of T.P. Murugan through Lrs. & Anr. -Vs- Bojan reported in 2018 SAR (Criminal) 923 wherein which it is held that -
" Secs. 139, 138- Dishonour of cheques- Legally enforceable debt or liability - Presumption- Under Section 139 of the N.I. Act, once a cheque has been signed and issued in 17 C.C. No.12427/2020 Judgt. favour of the holder, there is statutory presumption that it is issued in discharge of a legally enforceable debt or liability. This presumption is a rebuttable one, if the issuer of the cheque is able to discharge the burden that it was issued for some other purpose like security for a loan - In the present case, the respondent has failed to produce any credible evidence to rebut the statutory presumption- The appellants have proved their case by overwhelming evidence to establish that the two cheques were issued towards the discharge of an existing liability and legally enforceable debt- the respondent having admitted that the cheques and Pronote were signed by him, the presumption under S. 139 would operate- the respondent failed to rebut the presumption by adducing any cogent or credible evidence- hence, his defence is rejected - In view of the facts and circumstances, the impugned order passed in Criminal Revision Petition is hereby set aside, and the order of conviction and fine passed by the Trial Court is restored."
The ratio laid down in all these decisions are aptly applicable to the present case. In the case on hand, though the accused contended that there is no legally recoverable debt as he had issued Ext.P.1 and Ex.P.3 /Cheques as a security, but 18 C.C. No.12427/2020 Judgt. failed to prove his case by adducing cogent and reliable evidence. A mere saying is not sufficient to rebut the statutory presumption available to the complainant.
21. More so, the complainant succeeded in drawing above stated statutory presumption in his favour. Furthermore, on basis of the material evidence placed before the court, it clearly establishes that the accused had issued Ext.P.1 and Ex.P.3 /cheques for an amount of Rs.9,00,000/- to the complainant and the said cheques presented on the said day they were returned without honoring the same on account of "Funds Insufficient"
and "Payment Stopped by Drawer" maintained in the account of the accused. Further on perusing the EX-P.4, the postal receipt, the legal notice all these discloses that, inspite of the intimation of the dishonour of cheque accused did not comply the demand made in the legal notice. All these facts clearly establishes that, accused committed an offence under section 138 of N.I. Act. Therefore, I answered this point in the "Affirmative".
22. Point NO.2:- Having held the complainant has proved point No.1, the next aspect that arises for my consideration is 19 C.C. No.12427/2020 Judgt. regarding sentence to be imposed on the accused for having committed an offense punishable under section 138 of Negotiable Instrument Act. It could be seen from the materials that the complainant presented the cheques in the month of January, 2020 and the same were returned unpaid. Further, accused fails to repay the said amount about nearly 02 years 07 months and made the complainant to suffer for want of funds in his hands. So I am of the opinion that it is required to direct the accused to pay the compensation to the complainant and in that event only it will meet the ends of justice. Hence, for the foregoing reasons and finding to point No.1, I proceed to pass the following:
ORDER By invoking the power conferred under section 255(2) of Cr.P.C., the accused is convicted and sentenced to pay a fine of Rs.10,45,000/- for the offence punishable U/S.138 of N.I. Act and in default to pay the fine amount the accused shall undergo simple Imprisonment for one year.
Further, Acting under section 357(1)
(b) of Cr.P.C. the entire fine amount of Rs.10,40,000/- on recovery shall be paid to the complainant as compensation.20 C.C. No.12427/2020 Judgt.
Further, accused is directed to deposit the fine amount of Rs.5,000/- to the State out of fine amount.
Bail bond and surety bond of the accused shall stand cancelled.
Supply a free copy of this judgment to the accused.
Issue conviction warrant.
(Dictated to the Stenographer directly on computer, typed by her, corrected by me, signed then pronounced in the open court on this the 02 nd day of September, 2022.) (SMT.RESHMA H.K.) XXI ACMM, BENGALURU ANNEXURE
1. List of witnesses examined on behalf of the complainant:
PW-1 : Umesh.B
2. List of witnesses examined on behalf of the accused:
DW-1 : Asha Anand
3. List of documents marked on behalf the
complainant:
Ex.P.1 & 3 : Original Cheques
Ex.P.1(a) & 3(a) : Signatures of accused
Ex.P.2 & 4 : Return Memos
21 C.C. No.12427/2020 Judgt.
Ex.P.5 : Legal notice
Ex.P.6 : Postal Receipt
Ex.P.7 : Reply Notice
Ex.P.8 : Absolute Sale Deed
Ex.P.9 & 10 : Statements
4. List of documents marked on behalf of the
accused:
Ex.D.1 : Complaint
Ex.D.2 : Police Acknowledgment
Ex.D.3 : Endorsement
(SMT.RESHMA H.K.)
XXI ACMM, BENGALURU