Bangalore District Court
Mr. H. Narayan Rao vs Smt. Sumithra. G.S on 5 July, 2016
IN THE COURT OF THE XIX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY
Dated this the 5th day of July, 2016
PRESENT: SMT. ISHRATH JAHAN ARA, B.A.L., L.L.B.,
XIX ADDL.C.M.M.BANGALORE.
Case No: CC No.4759/2014
Complainant: Mr. H. Narayan Rao
S/o. Haro Rao,
Aged about 49 years,
R/at No.568, 6th Main,
4th Block, Rajajinagar,
Bengaluru -560 010.
Accused: Smt. Sumithra. G.S.
D/o. Late Shivalingappa,
Aged about 32 years,
R/at No.94, 2nd A Cross,
1st Main Road, Saraswathipuram,
Near Eshwara Hospital,
Mahalakshmipuram,
Bengaluru -560 086.
Offence complained of: U/s.138 of N.I. Act
Plea of accused: Pleaded not guilty
Opinion of the Judge Accused found guilty
Date of order: 5th July 2016
JUDGMENT
The complainant has filed this complaint u/Sec..200 of Cr.P.C. against the accused for the offence punishable u/Sec.138 of N.I. Act.
2. The brief facts of the complaint that;
The Complainant stated that the accused and Complainant are family friends and they are well-acquainted to each other and out of 2 C.C.No.4759/2014 acquaintance, the accused approached the Complainant for the financial assistance of Rs.4,00,000/- in the last week of December 2012 for her family commitments and by considering the request of the accused, the Complainant had advanced a sum of Rs.4,00,000/- by way of cash and after receipt of the loan amount, the accused promised to repay the loan amount within a span of 5 months. After completion of the 5 months, on the repeated request of the Complainant for the repayment of the loan amount the accused towards the repayment of the loan amount, had issued a cheque bearing No.334052 dtd.24.6.2013 for a sum of Rs.4,00,000/- drawn on Karnataka Bank Ltd., Mahalakshmipuram branch, Bengaluru in his favour with a request to present the said cheque for encashment and it will be honoured on its presentation.
3. It is further submitted that the Complainant on assurance of the accused, presented the said cheque before his banker Karur Vysya Bank Ltd., Rajajinagar branch, Bengaluru on 24.6.2013 for encashment but the said cheque returned dishonoured with an endorsement "Payment stopped by the drawer" on 25.6.2013 and the same was informed to this Accused. As the Accused has failed to make payment of the cheque amount, the Complainant got issued the Legal Notice on 12.7.2013 through RPAD and Speed Post, calling upon her to make payment of the cheque amount within 15 days from the date of receipt 3 C.C.No.4759/2014 of notice and the said notice was duly served on the accused on 16.7.2013. The Accused in spite of receipt of the notice neither chosen to make payment of the cheque amount nor she has sent her reply by denying the transaction. The Accused with an intention to cheat the Complainant, issued a bogus cheque and thereby the Accused has committed an offence punishable u/Sec.138 of N.I. Act.
4. After recording of sworn statement of the complainant, the Private Complaint lodged by the complainant was registered as a Criminal Case, summons was issued as against the accused. The accused appeared through her Counsel and she was enlarged on bail. Plea of accusation was read over to the accused. The accused pleaded not guilty and claims to be tried.
5. The complainant himself got examined as PW1 and he got produced 3 documents marked as Ex.P1 to Ex.P4 and closed his side of evidence.
6. After closure of the complainant side evidence, accused Statement u/Sec.313 Cr.P.C. recorded and read over to the accused. The accused denied the incriminating evidence in toto and she intended to lead her evidence. Accused got examined herself as DW1 and she got produced 3 documents marked as Ex.D1 to Ex.D3 and closed her side of evidence.
4 C.C.No.4759/2014
7. I have heard the arguments appearing for both the parties. I have perused the entire records. The learned Counsel for the accused has also filed his written arguments.
8. The only point arise for my consideration is:
1. Whether the Complainant has proved the guilt of the accused u/s 138 of NI Act beyond all reasonable doubts?
2. What order?
9. My findings to the above point are as under:
Point No.1 : In the Affirmative
Point No.2 : As per final order
for the following:
REASONS:
10. Point No.1: The entire burden is on the complainant to prove his case and also to prove the above point. In order to prove the same, the complainant stepped into the witness box, got examined as PW-1 and he filed his affidavit in lieu of the oral evidence by reiterating the complaint averments.
11. PW1 deposed that the accused is his family friend and out of friendship, the accused had borrowed the hand loan of Rs.4,00,000/- for her family commitments in the last week of December 2012 by way of cash and after receipt of the loan amount, the accused in order to repay the loan amount, had issued her cheque bearing No. 334052 dtd. 24.6.2013 for a sum of Rs.4,00,000/- drawn on Karnataka Bank Ltd., Mahalakshmipuram branch, Bengaluru in his favour with a request to 5 C.C.No.4759/2014 present the said cheque for encashment and on assurance of the accused, he presented the said cheque before his banker for encashment but, the said cheque returned dishonoured with an endorsement "Payment stopped by the drawer" on 25.6.2013 and the same was informed to this Accused.
12. He further deposed that as the Accused has failed to make payment of the cheque amount, he got issued the Legal Notice on 12.7.2013 through RPAD and Speed Post and the said notice was duly served on the accused on 16.7.2013. He deposed that the Accused in spite of receipt of the notice neither chosen to make payment of the cheque amount nor she has sent her reply by denying the transaction. He deposed that the Accused with an intention to cheat him, had issued the bogus cheque and thereby the Accused has committed an offence.
13. PW1 in order to prove his case got produced the original cheque issued by the accused marked as Ex.P1. He deposed that the signature found on Ex.P1 is that of the accused and he got identified the signature found on the cheque marked as Ex.P1(a). He got produced the bank endorsement marked as Ex.P2. He got produced copy of the legal notice along with two RPAD receipts marked as Ex.P3, Ex.3(a) & Ex.P3(b) respectively. He got produced the Postal 6 C.C.No.4759/2014 Acknowledgement Due Card for having served the notice to the accused marked as Ex.P.4.
14. The accused has denied the entire case of the Complainant and denied the very fact that she had borrowed the hand loan of Rs.4,00,000/- from this Complainant and she in order to repay the said loan amount, had issued his Ex.P1 - Cheque and the same was bounced. The learned Counsel for the accused subjected PW1 for cross-examination and he extensively cross-examined PW1.
15. Though the accused during the cross-examination of PW1 much has been put to him by denying the loan transaction and also by denying the issuance of Ex.P1 cheque by this accused towards repayment of the loan amount of Rs.4,00,000/- in his favour. However PW1 in his cross-examination denied the entire suggestions put to him and denied that on 20.11.2011 he had collected the duly signed blank cheque of this accused from the father of this accused as a security with an intention to get the loan from the bank in his name. He further denied the suggestion that the father of this accused had issued him Ex.P1 duly signed blank cheque of this accused. He further denied the suggestion that prior to filing of this complaint, he has not served the notice to this accused. He denied the suggestion that he by misusing the duly signed blank cheque of this accused, created and concocted 7 C.C.No.4759/2014 the same as Ex.P1 for Rs.4,00,000/- and based on the created document, filed this false complaint.
16. The accused during the cross-examination of PW1, excerpt putting some suggestions to PW1 that that he has not at all advanced any loan much less amounting to Rs.4,00,000/- in favour of this accused and he has no financial capacity to advance loan amount of Rs.4,00,000/-, which has been categorically denied by PW1, nothing has been elicited from his mouth to believe that the PW1 collected the duly signed blank cheque of this accused from the father of this accused as a security to get a loan from the bank in his name and subsequently, he by misusing the said cheque, created the same for Rs.4,00,000/- and filed this false complaint. As I have discussed supra, the PW1 during his cross-examination denied the entire suggestions put to him and denied that the accused is not liable to pay the cheque amount.
17. Though the accused has denied the very fact that she had borrowed a hand loan of Rs.4,00,000/- from this Complainant and towards repayment of the loan amount, she had issued his Ex.P1 - Cheque and the same was bounced. On the contrary, PW1 during his cross-examination denied the entire suggestions put to him and denied the very fact that this accused is not liable to pay the cheque amount and even denied the suggestion that the accused has not 8 C.C.No.4759/2014 issued Ex.P1 - Cheque towards repayment of the legal debt. The accused except putting some suggestions to PW1 that she is not liable to pay cheque amount, nothing has been elicited from his mouth to disbelieve his testimony or to discard his evidence.
18. The accused has not chosen to deny a fact that Ex.P1 is belong to her. The accused even admitted her signature found on Ex.P1 - Cheque marked as Ex.P.1(a). The accused even did not chosen to deny a fact that her Ex.P1-cheque was bounced with a specific reason "Payment stopped by the drawer". The accused did not chosen to deny a fact that her Ex.P1 - Cheque was produced before this court by PW1. No doubt, the accused during the cross- examination of PW1 put a suggestion that her duly signed blank cheque was misused by this Complainant issued towards the security to get the loan amount from the bank. However, the defence of the accused was categorically denied by PW1 in his cross-examination.
19. However, the accused has not chosen to deny the documentary evidence adduced by the PW1 before this court marked as Ex.P.1 to Ex.P4. PW1 has categorically deposed that immediately after the receipt of Ex.P2 - bank endorsement, he got issued Ex.P3 notice and the same was duly served upon the accused. Though during the cross-examination of PW1, the accused has denied the suggestion that he has not sent the notice to this accused prior to filing 9 C.C.No.4759/2014 of this complaint. However, PW1 during his cross-examination denied the entire suggestions put to him and denied that he has not issued the notice to this accused. The accused except putting suggestions to PW1 that no notice is served on her, has not chosen to deny the address found in Ex.P3 - Notice and she has not denied her signature found on Ex.P4. The Ex.P3, Ex.P3(a) and Ex.P4 documents clearly proves that the notice issued u/Sec.138 (b) of N.I. Act was duly served upon this accused and even after receipt of Legal Notice, the accused neither chosen to make payment of the cheque amount nor she has not sent her reply be denying the transaction. The oral and documentary evidence adduced before this court by the PW1 clearly proves that the accused even inspite of receipt of Legal Notice, has failed to make payment of the cheque amount.
20. However, the PW1 by adducing oral and documentary evidence before this court proved that the notice issued u/Sec.138 (b) of N.I. Act was served on this accused and even after completion of statutory period of limitation, the accused has failed to make payment of the cheque amount. Admittedly, the entire burden is on this accused to rebut the case of the Complainant and also to rebut the presumption available to this Complainant u/Sec.139 of N.I Act. 10 C.C.No.4759/2014
21. The accused in order to prove her defence and to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act, stepped into the witness-box and got examined as DW1. She deposed that during the year 2010 she has given her duly signed blank cheque in favour of her father without knowing the reason for what purpose her father taken her duly signed blank cheque she issued her duly signed blank cheque in favour of her father. She deposed that she has not borrowed any loan from this Complainant and even she has not issued Ex.P1 cheque in favour of this Complainant towards repayment of the loan amount. She deposed that that her Ex.P1 cheque is that of the year 2010 and issued the same in favour of her father in the year 2010 and in order to prove this fact, she got produced her bank passbook marked as Ex.D.1. She deposed that she is not liable to pay the cheque amount to this Complainant.
22. She has categorically deposed that she has received the notice from this Complainant and subsequently she personally approached this Complainant and asked the reason for sending the notice for which, the Complainant assured her that by mistakenly he had issued the notice and she need not worry about the notice. She deposed that as she has obtained the new Cheque Book from her bank she had given her application before his banker to make stop payment of the old cheque leaves as per Ex.D2. She deposed that after her father 11 C.C.No.4759/2014 was expired, the Complainant by misusing her duly signed blank cheque, created the same as Ex.P1 and filed this false complaint even though she is not liable to pay any amount to this Complainant. She got produced the death certificate of her father marked as Ex.D.3. DW1 prays to dismiss the complaint.
23. The Complainant has denied the testimony of DW1 and his learned Counsel subjected DW1 for cross-examination. DW1 in her cross-examination categorically admitted that in Ex.D1 document there is no whisper about the issuance of Ex.P1 cheque in favour of her father. She further admitted that in Ex.D1 it has not been disclosed that she had issued her duly signed blank cheque in favour of her father for his personal purpose. No doubt, the Ex.D1 document is pertaining to the year 2010 and it is also discloses that the cheque leaves prior and subsequent to the cheque bearing No.334052 was issued and encashed during the year 2010-11. However, admittedly, there is no whisper about the issuance of Ex.P1 cheque during the year 2010-11.
24. Moreover, the Ex.D1 document discloses that the DW1 has not issued her cheques relating to the cheque book pertaining to 334052 in a chronological order. In such situation, the testimony of DW1 that she had issued her duly signed blank cheque in favour of her father in the year 2010 for his personal purpose and subsequently, 12 C.C.No.4759/2014 the Complainant misused her cheque in the year 2013 and created this same as Ex.P1, cannot be believable and acceptable. Even in Ex.D2 document, the DW1 has not given any reason why she is intending to make stop payment of the cheque amount bearing No.334052 and 334055. Likewise, this document does not discloses that she had issued her these duly signed blank cheques in favour of her father in the year 2010 and therefore, she is intending to make stop payment of the cheque amount in the year 2012. Moreover, it is not the defence of the accused that she had the sufficient bank balance in her bank account and therefore, she made stop payment of the Ex.P1 cheque.
25. Admittedly, the DW1 has not chosen to produce documents before this court that as on date of Ex.P1 cheque she had sufficient balance in her bank account. Ex.D1 document discloses since from the year 2010-14 the DW1 has no balance in her bank account. In such situation, the testimony of DW1 that she made stop payment of her cheque in the year 2012 as the same had been issued by her in favour of her father in the year 2010, cannot be believable and acceptable.
26. Even though DW1 denied the suggestion that she after receipt of loan amount of Rs.4,00,000/- from this Complainant and towards the repayment of the loan amount, had issued her Ex.P1 cheque in favour of this Complainant and the same was bounced. However, the DW1 categorically admitted that she has no documents 13 C.C.No.4759/2014 with her to prove that he had issued his Ex.P1 duly signed blank cheque in favour of her father for his personal purpose. Likewise, she has categorically admitted that she has personally received the notice issued as per Ex.P3 and even after receipt of the Legal Notice from this Complainant, she has not initiated any legal action against this Complainant for misusing her cheque issued in favour of her father for his personal use.
27. Admittedly, the DW1 in order to prove that she had given her duly signed cheque in favour of her father for his personal purpose, has not chosen to prove the same by adducing documentary evidence before this court. There is nothing on record to believe that this Complainant by misusing the blank cheque of this accused, created the same as Ex.P1 and filed this false complaint, even though the accused was not liable to pay any amount in his favour. The DW1 failed to convince this court what is the impediment on her to issue reply notice immediately after receipt of the Ex.P3 notice. The testimony of DW1 that she personally approached this Complainant after receipt of Legal Notice and he made an assurance to her that he will not initiate any legal action against the said notice and she need not worry about the notice and therefore, she did not sent her reply, cannot be believable and acceptable and it holds no merit. 14 C.C.No.4759/2014
28. Admittedly, the DW1 except adducing the oral evidence that she had given her duly signed cheque in favour of her father for his personal purpose, has utterly failed to prove her defence to the satisfaction of the court by adducing documentary evidence before this court. Likewise, the defence of the accused that the Complainant has misused her duly signed cheque issued in favour of her father and created the same for Rs.4,00,000/- and filed this false complaint, cannot be believable and acceptable. Admittedly, the accused has not produced any piece of document before this court to believe her defence and to believe her testimony and to believe that the Complainant has taken her blank cheque from her father and subsequently misused the same and created the same as Ex.P1 for Rs.4,00,000/- and filed this false complaint, even though there was no any loan transaction in-between them. The oral evidence of DW1 itself is not sufficient and convincing to believe her defence and to discard the case of the Complainant. As I have discussed supra, the DW1 has utterly failed to prove her defence that her duly signed cheque was misused by the Complainant and created the cheque for Rs.4,00,000/- and filed this false complaint.
29. The oral evidence adduced before this court by the accused is not convinced this court and it will not rebut the case of the Complainant and also his oral and documentary evidence as well as it 15 C.C.No.4759/2014 will not rebut the presumption available to this Complainant u/Sec.139 of N.I. Act. The accused has utterly failed to prove that there was no any loan transaction in between her with this Complainant much less amounting to Rs.4,00,000/- and she has not issued the Ex.P1 cheque towards repayment of the debt or other liability. In such situation, the defence taken by the accused during the course of trial, cannot be believable and acceptable. Even when this accused was questioned u/Sec.313 of Cr.P.C. by this court, accused except denying incriminating evidence deposed against her by PW1, has not chosen to put forth any defence from her side. Likewise, the Accused has utterly failed to rebut the presumption available to this Complainant u/Sec.118 and also u/Sec.139 of N.I. Act it reads thus respectively.
30. As per the provisions of Sec.118, which reads thus:
a. Of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
b. As to date - that every negotiable instrument bearing a date was made or drawn on such date; c. As to time of acceptance - that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
d. As to time of transfer - that every transfer of a negotiable instrument was made before its maturity;16 C.C.No.4759/2014
e. As to order of endorsements - that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;
f. As to stamps - that a lost promissory note, bill of exchange or cheque was duly stamped;
g. That holder is a holder in due course - that the holder of a negotiable instrument is a holder in due course;
31. Likewise, the accused also failed to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act which reads:
It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.
32. The learned Counsel for the accused filed his written arguments by stating that the Complainant has utterly failed to prove the advancement of loan amount of Rs.4,00,000/- by way of cash to this accused by adducing documentary evidence before this court. He further stated that the accused issued her duly signed blank cheque in favour of her father for his personal use and this Complainant who was the friend of her father, misused her cheque and filed this false complaint based on the created and concocted cheque. He has argued that the Complainant has not produced any documents to prove that he had the financial capacity to advance the huge loan amount of Rs.4,00,000/- to this accused and for what purpose the accused had borrowed the huge loan amount of Rs.4,00,000/-. He has argued that 17 C.C.No.4759/2014 the Complainant without disclosing the source of money acquired by him and even without proving the existence of debt or other liability as on date of Ex.P1 cheque, filed this false complaint by making false allegation against this accused, which is not maintainable.
33. He has further argued that the presumption u/Sec.139 of N.I. Act is available to this Complainant only with respect to issuance of cheque towards the discharge of debt or other liability but the Complainant has to prove the existence of debt or other liability as on date of Ex.P1 cheque to the satisfaction of the court and only after the Complainant proved this fact, the presumption u/Sec.118(a) and Sec.139 of N.I. Act is available to this Complainant. He has argued that the accused can very well discharge her burden by preponderance of probabilities and even by cross-examining PW1 by eliciting the truth from his mouth without leading any evidence from the side of this accused and this accused by cross-examining PW1 and also by leading her evidence, has successfully discharged the burden and she successfully rebutted the presumption available to this Complainant and by considering all these facts and evidence available on record by giving the benefit of doubt in favour of this accused, accused has to acquitted, is not convinced this court and it cannot be acceptable.
34. The arguments of the learned Counsel for the accused is that the accused has successfully rebutted the presumption available to this 18 C.C.No.4759/2014 Complainant u/Sec.139 of N.I. Act by adducing oral evidence before this court and by considering the evidence adduced before this court by the accused, the accused has to be acquitted, is also not convinced this court and it holds no merit.
35. On the contrary, the learned Counsel for the Complainant has vehemently argued that the Complainant before filing of this complaint, has followed all the procedures prescribed u/Sec.138 of N.I. Act and this Accused even after receipt of the Legal Notice, the accused has neither chosen to make payment of the cheque amount nor she has sent her reply by denying the transaction and by drawing an adverse inference against these Accused, the Accused has to be convicted in accordance with law, is fully convinced this court. Likewise, his arguments that the accused only with an intention to ran away from her liability to make payment of the cheque amount, has taken up the false defence during the course of trial, is also convinced this court and therefore, it is accepted.
36. The complainant by adducing oral and documentary evidence before this court, has proved the guilt of the accused beyond all reasonable doubt. There is no whatsoever doubt in the mind of court about the case of the complainant. The oral and documentary evidence adduced before this court by the complainant, is fully corroborating with each other and convinced this court about his case. 19 C.C.No.4759/2014 The complainant by adducing oral and documentary evidence before this court bring home the guilt of the accused beyond all reasonable doubt. Therefore, by taking into consideration the facts and circumstances and evidence available on record, I answer this Point No.1 in affirmative.
37. Point No.2. In view of my findings on the above point and the reasons stated therein, I proceed to pass the following:
ORDER Acting u/Sec.255 (2) of Cr.P.C. the accused is hereby convicted for the offence punishable u/Sec.138 of N.I. Act.
The accused is sentenced to pay a fine of Rs.5,00,000/- (Rupees Five Lakhs only). In any default to pay fine amount the Accused shall undergo simple imprisonment for 6 months.
Out of fine amount recovered under Section 357 of Cr.P.C. a sum of Rs.4,95,000/- (Rupees Four Lakhs and Ninety-five Thousand only) shall be paid to the complainant which includes the cheque amount and also cost of the proceedings. Remaining fine amount of Rs.5,000/- shall be forfeited to State.
The bail bond and surety bonds of the accused stands cancelled.
Office to furnish free copy of the judgement to the accused forthwith.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified and then pronounced by me in the Open Court on this the 5th day July 2016) (ISHRATH JAHAN ARA) XIX ADDL.C.M.M., Bengaluru.20 C.C.No.4759/2014
ANNEXURE:
Witnesses examined on behalf of the Complainant: PW.1 Mr. H. Narayana Rao Witnesses examined on behalf of the Accused: D.W.1 Mrs. Sumithra 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 Copy of the legal notice
Ex.P.3(a) & Ex.P3(b) RPAD Receipts
Ex.P.4 Postal Acknowledgement Due Card
Documents marked on behalf of the Accused:
Ex.D1 Bank Pass book
Ex.D2 Application given to the bank
Ex.D3 Death Certificate of accused's father
XIX ACMM, Bengaluru.
21 C.C.No.4759/2014