Bangalore District Court
Sri Srinivasamurthy.R vs Smt. Dorasani on 3 October, 2016
IN THE COURT OF THE XIX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY
Dated this the 3rd day of October, 2016
PRESENT: SMT. ISHRATH JAHAN ARA, B.A.L., L.L.B.,
XIX ADDL.C.M.M.BANGALORE.
Case No: CC No.20415/2015
Complainant: Sri Srinivasamurthy.R.
S/o. Konaiah,
Aged about 40 years,
R/at No.14, 2nd Cross,
Virupakshapura, Kodigehalli,
Bengaluru -560 097.
Accused: Smt. Dorasani
W/o. Thirupathaiah
Aged about 28 years,
#138, 3rd Cross, Raghuram Layout,
Ramachandrapura,
Bengaluru -560 013.
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: 3rd October 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 Complainant and accused are close relatives and family friends and out of friendship, the 2 C.C.No.20415/2015 accused had approached the Complainant for the hand loan of Rs.4,00,000/- to run and improve real estate business of her husband by assuring that she will repay the said loan amount within six months and by considering the request of the accused, the Complainant had advanced a sum of Rs.4,00,000/- on 25.9.2014 and subsequently, after lapse of six months on repeated requests and demand, the accused in order to repay the loan amount, had issued a cheque bearing No.508931 dtd.23.5.2015 for Rs.4,00,000/- drawn on ICICI Bank Ltd., BTM Layout branch, Bengaluru with a request to present the said cheque for encashment on its presentation 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 Lakshmi Vilas Bank Ltd., M.E.S Road, Muthyalanagara, Bengaluru for encashment but the said cheque returned dishonoured with an endorsement "Account closed" on 2.6.2015 and the same was informed to this Accused.
4. He further stated that as the Accused has failed to make payment of the cheque amount, the Complainant got issued the Legal Notice on 15.6.2015 through RPAD, calling upon the Accused to pay the cheque amount within 15 days from the date of receipt of notice and the same was duly served upon the accused on 18.6.2015. The 3 C.C.No.20415/2015 Accused in spite of receipt of the notice, has neither chosen to make payment of the cheque amount nor she has sent her reply by denying the transaction. The Accused knowing fully well that her account was already been closed, had issued her bogus cheque with an intention to cheat this Complainant and thereby the Accused has committed an offence punishable u/Sec.138 of N.I. Act.
5. 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.
6. The complainant himself got examined as PW1 and he got produced 5 documents marked as Ex.P1 to Ex.P5 and closed his side of evidence.
7. 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. The accused has not led any evidence from her side.
8. I have heard the arguments appearing for both the parties. I have perused the entire records.
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9. The only point arise for my consideration is:
1. Whether the Complainant has proved the guilt of the accused u/s 138 of N.I. Act beyond all reasonable doubts?
2. What order?
10. 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:
11. 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.
12. PW1 deposed that the accused is his close relative and family friend and out of friendship, the accused had approached him for the hand loan of Rs.4,00,000/- to run and improve real estate business of her husband and he by considering the request of the accused, had advanced a sum of Rs.4,00,000/- on 25.9.2014 and subsequently, after lapse of six months on his repeated requests and demand, the accused in order to repay the loan amount, had issued her cheque bearing No.508931 dtd.23.5.2015 for Rs.4,00,000/- drawn on ICICI Bank Ltd., BTM Layout branch, Bengaluru with a request to 5 C.C.No.20415/2015 present the said cheque for encashment on its presentation and it will be honoured on its presentation.
13. He further deposed that on assurance of the accused, he presented the said cheque before his banker for encashment but the said cheque returned dishonoured with an endorsement "Account closed" on 2.6.2015 and the same was informed to this Accused.
14. He further deposed that as the Accused has failed to make payment of the cheque amount, he got issued the Legal Notice on 15.6.2015 through RPAD, calling upon the Accused to pay the cheque amount and the same was duly served upon the accused on 18.6.2015. He further deposed that the Accused in spite of receipt of the notice, has neither chosen to make payment of the cheque amount nor she has sent her reply by denying the transaction. He deposed that the Accused knowing fully well that her account was already been closed, had issued her bogus cheque with an intention to cheat him and thereby the Accused has committed an offence.
15. PW1 in order to prove his case, got produced the original cheque issued by this accused marked as Ex.P1. He deposed that the signature found on Ex.P1 is that of this 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 6 C.C.No.20415/2015 copy of the legal notice along with RPAD receipt marked as Ex.P3 and Ex.P3(a) respectively. He got produced the Postal Acknowledgement Due Card for having served the notice to the accused marked as Ex.P.4. He got produced his Account Ledger Extract maintained before Lakshmi Vilas Bank to prove his financial capacity to advance the loan amount to this accused and also prove that he after withdrawing a sum of Rs.4,00,000/- from his bank account, on 25.9.2014 advanced the same in favour of this accused as Ex.P.5.
16. 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 her 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.
17. The PW1 in his cross-examination categorically stated that he advanced the loan amount to this accused on 25.9.2014 and this accused came along with her husband to borrow the hand loan amount and she borrowed the hand loan amount for the purpose of improvement of their Real Estate business. He further stated that the accused has not executed any documents in his favour for the security for the loan amount of Rs.4,00,000/-. PW1 stated that he without 7 C.C.No.20415/2015 interest, advanced the loan amount by way of cash to this accused on her request.
18. The accused during the cross-examination of PW1 denied her liability to pay the cheque amount of Rs.4,00,000/-. PW1 denied the suggestion that he has not advanced any kind of loan to this accused. He further denied the suggestion that the accused has not issued her Ex.P1 cheque towards repayment of the loan amount. He denied the suggestion that he himself for his convenience, written all the contents of the cheque by forging the signature of the accused on Ex.P1 and presented the cheque for encashment even though the accused has not issued him Ex.P1 cheque by putting his signature as per Ex.P1(a). He denied the suggestion that the Ex.P1 cheque is not belonged to the bank account of this accused and even denied the suggestion that this accused is not having the bank account at ICICI Bank, BTM Layout branch. He denied the suggestion that even though Ex.P1 cheque is not belonged to this accused along with the signature found on Ex.P1 marked as Ex.P.1(a), only with an intention to harass this accused and to make a wrongful gain for himself, filed this false complaint against this accused. Though the PW1 admitted the suggestion that he is aware of the fact that if any transaction for more than Rs.20,000/-, it should be made through Cheque or D.D., however, he has stated that as the accused requested him to cash amount, he 8 C.C.No.20415/2015 advanced the loan amount of Rs.4,00,000/- to this accused by way of cash.
19. The accused except putting some suggestion to PW1 during his cross-examination that she is not liable to pay cheque amount and even Ex.P1 cheque along with the signature marked as Ex.P.1(a) is not that of her, nothing has been elicited from his mouth to disbelieve his testimony or to discard his evidence. Though the accused has taken up the defence that the Ex.P1 cheque is not belonged to her bank account and even she has no bank account at ICICI Bank, BTM Layout branch and even Ex.P1(a) signature is not that of her and even the said defence was put to PW1 during his cross-examination. However, the said defence was categorically denied by PW1 in his cross-examination and he denied the entire suggestions put to him and denied that he had filed this false case against this accused only with an intention to make a wrongful gain and to harass this accused.
20. Even though the accused has denied her cheque marked as Ex.P.1 along with her signature marked as Ex.P.1(a) and also denied that she issued her Ex.P1 cheque towards repayment of the loan amount, however, the accused has not chosen to state to whom the cheque is belonged and how the said cheque came into the hands of this PW1. The accused has not even chosen to disclose the account 9 C.C.No.20415/2015 disclosed in Ex.P1 belonged to whom and in whose favour the said account is standing.
21. The accused without explaining all these facts and even without furnishing the details of the cheque, has put a suggestion to PW1 that the Ex.P1 cheque is not belonged to her bank account and even the signature found on the Ex.P1 cheque is not that of her. However, the defence of the accused was categorically denied by PW1 in his cross-examination.
22. The accused has not chosen to deny a fact that immediately after the receipt of Ex.P2 bank endorsement, the Complainant got issued Ex.P3 notice. Though the accused has denied the fact that he personally received the notice issued as per Ex.P3. On the contrary, PW1 has categorically deposed that immediately after receipt of the Bank Endorsement marked as Ex.P.2, he has sent notice as per Ex.P3, calling upon the accused to pay the cheque amount and the same was duly served on the accused as per Ex.P4. The accused during the cross-examination of PW1, except putting some suggestions that no notice is served on him, which has been categorically denied by PW1, nothing has been elicited from his mouth to prove that the address disclosed in Ex.P3 was not the correct address of the accused and even she has not suggested what is her correct address and where exactly she is residing.
10 C.C.No.20415/2015
23. The accused except putting suggestions to PW1 in his cross- examination that no notice is not served on her, has failed to prove her correct address and also failed to elicit any fruitful information from the mouth of PW1 with respect to her correct address. Without any proof for her correct address and even without suggesting her correct address to PW1 in his cross-examination, mere a suggestion to PW1 that he has not sent the notice to her correct address and as such, no notice is served on her, which has been categorically denied by PW1 that itself is not sufficient to hold that the address disclosed in Ex.P3 notice is incorrect address and this PW1 has intentionally sent the notice to the wrong address of this accused and as such, the notice is not served on her.
24. Admittedly, the Ex.P4 document proves that the notice issued u/Sec.138(b) of N.I. Act was served on this accused and even after receipt of the Legal Notice, the accused neither chosen to make payment of the cheque amount nor she has sent her reply by denying the transaction. In such situation, an adverse inference has to be drawn against this accused that she after receipt of the Legal Notice, by admitting the contents of the notice and also by admitting her liability to pay the cheque amount, did not resisted the claim of the Complainant 11 C.C.No.20415/2015
25. As I have discussed supra, the accused except denying the transaction and also by denying the issuance of cheque towards the repayment of the loan amount, has failed to convince the court what is impediment on her to send a reply to Ex.P3 - Notice immediately after receipt of the Ex.P3 - Notice. However, PW1 has deposed that the accused even after receipt of the Legal Notice as per Ex.P3, has neither chosen to make payment of the cheque amount nor she has sent her reply by denying the transaction and also by denying the contents of the notice.
26. The oral and documentary evidence adduced before this court by the Complainant clearly proves that the accused even inspite of receipt of Legal Notice, has failed to make payment of the cheque amount. PW1 got produced the Ex.P5 document to proves that on 25.9.2014 he has withdrawn a sum of Rs.4,00,000/- from his bank account to advance the same in favour of this accused and he advanced the said amount to this accused as a loan. This fact was not denied by the accused. No suggestion was put to PW1 either denying the contents of Ex.P5 or by denying the withdrawal of amount amounting to Rs.4,00,000/- on 25.9.2014. The Ex.P5 document clearly proves that the loan amount advanced by this Complainant is an accounted money and he has withdrawn the amount from his bank account.
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27. 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.
28. The accused in order to prove her defence and to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act, has not chosen to lead her evidence from her side. As I have discussed supra, even after receipt of Legal Notice as per Ex.P3, the accused has not even sent her reply by denying the contents of the notice. These facts clearly prove that the accused only for the sake of defence during the stage of trial, has taken up the false defence before this court that Ex.P1 cheque was not belonged to her and even the signature found on Ex.P1 is not that of her and she has not issued the cheque in favour of this Complainant.
29. As I have discussed supra, the accused except taking the defence during the cross-examination of PW1, has not chosen to prove her defence by adducing evidence before this court. As I have discussed supra, PW1 in his cross-examination categorically denied the entire suggestions put to him and denied that the accused is not 13 C.C.No.20415/2015 liable to pay the cheque amount. The accused has utterly failed to prove her defence by adducing cogent and convincing evidence before this court. The accused has utterly failed to rebut the presumption available to this available to the Complainant u/Sec.139 of N.I. Act
30. The entire burden is on this accused to prove that Ex.P1 cheque is not belonged to her bank account and the said cheque is not related to her and even the signature marked as Ex.P.1(a) is not that of her. The accused has utterly failed to prove her defence to the satisfaction of the court by adducing cogent and convincing evidence before this court.
31. The accused has utterly failed to prove that this Complainant was filed this complaint against a wrong person and she is not the drawee of the cheque and even the said cheque is not belonged to her. In such situation, the defence taken by the accused during the course of trial, cannot be believable and acceptable. 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.
32. 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, 14 C.C.No.20415/2015 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;
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;
33. Likewise, the accused also failed to rebut the presumption available to this Complainant u/s.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.
34. 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, has neither chosen to make payment of the cheque amount nor she has sent her reply by denying the transaction and therefore, by drawing an adverse 15 C.C.No.20415/2015 inference against this Accused, the Accused has to be convicted in accordance with law, is fully convinced this court. He has arguments that the notice issued as per Ex.P3 was duly served on this accused and this accused was duly received the notice and even after receipt of Legal Notice, the accused has not complied the notice by paying the cheque amount. Admittedly, the accused after receipt of the Legal Notice, has neither chosen to make payment of the cheque amount nor she has sent her reply by denying the fact that Ex.P1 cheque is not belonged to her and even she has not denied her signature found on the cheque. In such situation, during the stage of trial, the defence of the accused that the Ex.P1 cheque is not belonged to her and even the signature found on Ex.P1 is not that of her, cannot be acceptable and it holds no merit. The arguments canvassed by the learned Counsel for the Complainant, is fully convinced this court.
35. 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 cross- examination of PW1 that the Ex.P1 cheque is not belonged to her and even the signature found Ex.P1 is not that of her and this Complainant has filed this complaint against a wrong person. The arguments canvassed by the learned Counsel for the Complainant, is fully convinced this court.
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36. Likewise, his further arguments that the accused only for the sake of the defence, during the cross-examination of PW1, has taken up the defence that the Complainant has not sent the notice to her correct address and therefore, no notice is served on her. He has argued that the accused has not furnished her correct address and even she has not produced any documents before this court to prove her correct address. He has argued that there is no documents before this court for the correct address of this accused and in such situation, mere a suggestion to PW1 during his cross-examination that no notice is served on her and even the address disclosed in Ex.P3 is incorrect address that itself is not sufficient to hold that this Complainant has not issued the notice to the correct address of this accused and the address disclosed in Ex.P3 is an incorrect address. He has argued that the accused to escape from her liability to pay the cheque amount and once she admits the receipt of the notice, she will be held liable to the cheque amount, has taken up the false defence during the course of trial. The arguments canvassed by the learned Counsel for the Complainant, is fully convinced this court.
37. He has further argued that this the entire loan amount of Rs.4,00,000/- is an accounted amount and this Complainant has with withdrawn the amount from his bank account on 25.9.2014 with an intention to advance the same in favour of this accused and this fact was disclosed in Ex.P5 - Account Extract. He has argued that the 17 C.C.No.20415/2015 Complainant had the financial capacity to advance the huge loan amount of Rs.4,00,000/- and this Complainant by producing and marking Ex.P5 document before this court, proved his financial capacity. His arguments is also fully convinced this court.
38. 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. 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.
39. 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.4,55,000/- (Rupees Four Lakhs and Fifty-five Thousand only). In any default to pay fine amount shall undergo simple imprisonment for 6 months.18 C.C.No.20415/2015
Out of fine amount recovered under Section 357 of Cr.P.C. a sum of Rs.4,50,000/- (Rupees Four Lakhs and Fifty 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 bond 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 3rd day of October 2016) (ISHRATH JAHAN ARA) XIX ADDL.C.M.M., Bengaluru.
ANNEXURE:
Witnesses examined on behalf of the Complainant:
PW.1 Mr. R. Srinivasamurthy Witnesses examined on behalf of the Accused: Nil 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) RPAD Receipt
Ex.P.4 Postal Acknowledgement Due Card
Ex.P.5 Account Ledger Extract
Documents marked on behalf of the Accused:
Nil
XIX ACMM, B'lore.
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