Bangalore District Court
Sri. K. Vijaykumar vs Smt. Kowsalya Vijay on 24 February, 2015
IN THE COURT OF THE XIX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY
Dated this the 24th day February, 2015
PRESENT: SMT. ISHRATH JAHAN ARA, B.A.L., L.L.B.,
XIX ADDL.C.M.M.BANGALORE.
Case No: CC No. 3706/2012
Complainant: Sri. K. Vijaykumar
Aged about 32 years,
No.126, 3rd Cross
Bhashyam Nagar,
Saibana Nagar,
Bangalore -560 021.
Accused: Smt. Kowsalya Vijay,
W/o. Vijay,
No.117, Binny Layout
II Stage, 13th Main Road,
Vijaynagar,
Bangalore -560 021.
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: 24th February 2015
JUDGMENT
The complainant has filed this complaint U/s.200 of Cr.P.C. against the accused for the offence punishable U/s. 138 of N.I. Act. 2 C.C.No.3706/2012
2. The brief facts of the complaint that, The Complainant stated that the husband of the accused and this Complainant are close friends and out of the acquaintance accused approached this Complainant for the hand loan of Rs.3,00,000/- to develop the business of her husband in the month of August 2011. The Complainant by considering the request of the Accused, had advanced a sum of Rs.3,00,000/- in the month of August 2011. The Accused in order to repay the loan amount, had issued a cheque bearing No.372266, dtd. 29/9/2011 for a sum of Rs.3,00,000/- drawn on Indian Bank, Prashanthnagar branch, Bangalore with a request to present the said cheque for encashment.
3. It is further submitted that the Complainant presented the said cheque before his banker HDFC Bank, Richmond Road branch, Bangalore and the same cheque returned dishonoured with an endorsement "insufficient funds" on 3.10.2011 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 20/10/2011 through RPAD calling upon the Accused to make payment of the cheque amount within 15 days from the date of service of notice and the said notice was duly served upon this Accused on 3.11.2011. The Accused even inspite of receipt of 3 C.C.No.3706/2012 Legal Notice neither chosen to make payment of the cheque amount nor she has replied the notice by denying the transaction. The Accused knowing fully well that she has no sufficient funds in her bank account, had issued a bogus cheque only with an intention to cheat this Complainant 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 claimed to be tried.
5. 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.
6. After closure of the complainant side evidence, accused Statement u/Sec.313 Cr.P.C. recorded. The accused denied the incriminating evidence in toto and she intended to lead her evidence. The Accused got herself examined as DW1 and no documents were marked from her side.
4 C.C.No.3706/2012
7. I Have heard the arguments on the both sides. I have perused the entire records. The learned Counsel for the Complainant 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 had borrowed a hand loan of Rs.3,00,000/- in the month of August 2011 with an intention to expand/develop the business of her husband by agreeing to repay the loan amount within a month. He deposed that the Accused in 5 C.C.No.3706/2012 order to repay the loan amount, had issued a cheque Bearing No. 372266, dtd. 29/9/2011 for a sum of Rs.3,00,000/- drawn on Indian Bank, Prashanthnagar branch, Bangalore with a request to present the said cheque for encashment. He deposed that he presented the said cheque before his banker for encashment. But the said cheque returned dishonoured with an endorsement "insufficient funds" on 3/10/2011 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 20/10/2011 through RPAD calling upon the Accused to make payment of the cheque amount and the same was duly served upon this Accused on 3/11/2011. He deposed that the Accused even inspite of receipt of Legal Notice neither chosen to make payment of the cheque amount, nor she has replied the notice by denying the transaction. He deposed that the Accused knowing fully well that she has no sufficient funds in her bank account, had issued a bogus cheque only with an intention to cheat this Complainant and thereby the Accused has committed an offence.
13. PW1 in order to prove his case got produced the cheque marked as Ex.P1. He deposed that the signature found on Ex.P.1 is 6 C.C.No.3706/2012 that of this accused. He got identified the signature of the accused marked as Ex.P1(a). He got produced the bank endorsement marked as Ex.P2. He got produced the copy of legal marked as Ex.P3. He got produced the Postal Acknowledgement Due Card for having served the notice to the Accused marked as Ex.P.4. He got identified the complaint marked as Ex.P.5 and his signature on the complaint is marked as Ex.P.5(a).
14. The accused has denied the entire case of the complainant and also denied that she had borrowed a hand loan of Rs.3,00,000/- from this complainant and she in order to repay the said loan amount, had issued the Ex.P.1 cheque and the same was bounced. The Learned Counsel for the accused extensively cross-examined the PW1 by denying his testimony.
15. PW1 in his cross-examination stated that he is doing Animation in Modeling work, from which he is getting Rs.15,000/- to 20,000/- per month. He further stated that he is not an income tax assessee and as such he has no documents with him to prove his income. He admitted the suggestion that his mother name is Smt. Thulasamma and but he is not aware whether his mother had filed a 7 C.C.No.3706/2012 similar type of complaints against the husband of this Accused in C.C. 5783/2012 and C.C. 3192/2012 before this court.
16. PW1 stated that very recently he came to know about the filing of these cases by his mother. He admitted the suggestion that he has not produced any document before this court to prove that he had with him a sum of Rs.3,00,000/- as on the date of August 2011 and he advanced the said amount to this Accused. He further admitted that he has not disclosed in his notice or in the complaint averments that on which exact date, he had advanced the loan amount to this Accused. PW1 sated that he has not obtained any documents from this Accused towards the security of the loan amount of Rs.3,00,000/-.
17. PW1 sated that except the cheque issued by this Accused marked as Ex.P.1, he has no other documents to prove the loan transaction and also to prove that he had advanced a sum of Rs.3,00,000/- to this Accused and this Accused in order to repay the loan amount, had issued him a cheque. He denied the suggestion that he has no financial capacity to advance the huge loan amount of Rs.3,00,000/- to this Accused. He denied the suggestion that he colluding with his mother, created and concocted the blank cheque 8 C.C.No.3706/2012 issued by the husband of this Accused towards the security of the loan amount borrowed by him from his mother, misused her cheque and filed this false complaint against this Accused.
18. The Accused during the stage of trial has taken up the specific defence that her husband had borrowed loan for three times from the mother of this Complainant and towards the security of the loan amount, twice her husband has issued his cheques in favour of the mother of PW1 and another time as he was not available with his cheque, he had issued her duly signed blank cheque as a security and given to the mother of this PW1.
19. The Accused has taken up the defenc that the mother of this Complainant misused the duly signed blank cheque of her husband and created and concocted the same and filed two separate cases by herself against her husband and one case had been filed by this Complainant against her even though there was no any loan transaction in between her with this Complainant. Though the Accused during the cross-examination of PW1 put to her defence to PW1 by suggesting that the husband of this Accused had borrowed loan on three occasions from his mother Smt. Thulasamma and towards the security of the loan amount, he had given her his duly 9 C.C.No.3706/2012 signed two blank cheques and also given her a duly signed blank cheque to this Accused as he was not available with the cheque book with him and the same was misused by his mother colluding with him.
20. On the contrary, the PW1 in his cross-examination denied the entire suggestions put to him and denied that he colluding with his mother, misused the cheque given by the husband of this Accused towards security of the loan amount and created the same as Ex.P.1. PW1 further denied the suggestion that this Accused has not at all borrowed any loan from him and she has not issued Ex.P.1 cheque towards the repayment of the loan amount. PW1 in his cross-examination denied the other suggestions put to him and denied the fact that the Accused is not liable to pay the cheque amount.
21. Though the Accused has denied the issuance of cheque towards the repayment of the loan amount on the contrary, the Accused has admitted the fact that Ex.P.1 cheque is belong to her. The Accused even did not chosen to deny a fact that the signature 10 C.C.No.3706/2012 found on Ex.P.1 marked as Ex.P.1(a) is not that of her. The Accused even did to chosen to deny a fact that Ex.P.1 cheque was bounced as there was no sufficient funds in her bank account. The Accused even did not chosen to deny a fact that before filing of this complaint, the Complainant had issued Ex.P.3 notice and the same was duly served upon her. Admittedly, the Accused has not chosen to deny the documentary evidence marked as Ex.P.1 to Ex.P.5.
22. On the contrary the PW1 categorically deposed that he after receipt of the bank endorsement as per Ex.P.2 from his bank, got issued Ex.P.3 notice calling upon the Accused to pay the cheque amount and the same was duly served upon this Accused. He deposed that the Accused even after receipt of Legal Notice neither chosen to make payment of the cheque amount nor she has sent her reply by denying the contents of Ex.P.3 notice.
23. He has categorically deposed that the Accused knowing fully well that she has no sufficient funds in her bank account, had issued a bogus cheque. Even this fact was 11 C.C.No.3706/2012 not denied by this Accused. Ex.P.4 document clearly proves that Ex.P.3 notice issued under section 138 (b) of N.I. Act was duly served upon the Accused and even inspite of receipt of Legal Notice the Accused neither chosen to make payment of the cheque amount nor she has sent her reply.
24. Admittedly, the 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. The Accused in order to prove her defence, stepped into the witness box and got examined as DW1. She deposed that the mother of this Complainant Smt. Thulasamma is known to her and her husband and her husband had borrowed a hand loan of Rs.3,00,000/- from the mother of this Complainant and subsequently, he had repaid the entire loan amount to the said Smt. Thulasamma. She deposed that her husband had borrowed the loan amount on thrice from the mother of this Complainant.
12 C.C.No.3706/2012
25. She deposed that she has given her duly signed blank cheque to her husband to give to the same to the mother of this Complainant towards the security of the loan amount borrowed by him as her husband was not available with the cheque book with him and her husband has given her duly signed blank cheque to the mother of this Complainant. She deposed that the mother of this Complainant misused the blank cheque issued by her and out of three cheques, the mother of the Complainant had filed two separate cases against her husband and she colluding with this Complainant, misused her another cheque belong to her and filed this false complaint even though she is not liable to pay the cheque amount.
26. She further deposed that there was no any loan transaction in between her with this Complainant and even she has not borrowed any kind of loan from this Complainant. She deposed that she has not issued Ex.P.1 cheque towards the repayment of the loan amount. She deposed that the Complainant only with an intention to make an unlawful gain and to cause loss to her, misused her blank cheque and filed this false complaint. She deposed that she is not liable to pay the cheque amount and hence she prays to dismiss the complaint.
13 C.C.No.3706/2012
27. The Complainant denied the testimony of DW1 and his learned Counsel subjected DW1 for cross-examination. DW1 in her cross-examination categorically admitted that Ex.P.1 cheque is belong to her and even admitted that the Ex.P.1(a) signature is belong to her. DW1 even admitted the suggestion that she has personally received the notice issued as per Ex.P.3 and even inspite of receipt of Ex.P.3 notice she did not send her reply by denying the contents of the notice.
28. Moreover, DW1 has stated that she is a B.Com. Graduate and her husband is an industrialist and doing business. She further stated that her husband is having a bank account of his name and he is also having cheque book facility in his name. DW1 in her cross- examination categorically stated that she has no documents with her to prove that she has given her duly signed blank cheque in favour of her husband to give to the same in favour of Smt. Thulasamma towards the security of the loan amount borrowed by him.
29. DW1 admitted that till this day, she has not initiated any legal action either against this Complainant or his mother for misusing her duly signed blank cheque issued towards the security of the loan amount borrowed by her husband from his mother Smt. 14 C.C.No.3706/2012 Thulasamma. DW1 except adducing the oral evidence that she has given her duly signed blank cheque in favour of her husband to give it to the same in favour of mother of PW1 Smt. Thulasamma towards the security of the loan amount borrowed by her husband, which has been categorically denied by this Complainant, nothing has been placed before this court to believe her testimony and to believe her defence.
30. As I have discussed supra, the DW1 categorically admitted that the Ex.P.1 cheque is belong to her and she even admitted her signature on Ex.P.1 cheque marked as Ex.P.1(a). The DW1 except adducing the oral evidence that she had given her Ex.P.1 cheque as a security towards the loan amount borrowed by her husband from Smt. Thulasmma, has not chosen to prove the same by adducing documentary evidence before this court. There is nothing on record to believe that the mother of the Complainant has collected a duly signed blank cheque belong to this Accused as a security towards the loan amount advanced by her in favour of the husband of this Accused.
31. The DW1 except adducing the oral evidence, has not chosen to produce any documentary evidence before this court to 15 C.C.No.3706/2012 corroborate her testimony. The Accused even did not chosen to examine her husband before this court to corroborate her testimony and to prove her defence. The entire burden is on this Accused to prove that she has given her duly signed blank cheque to her husband to give to the same in favour of the mother of this PW1 Smt. Thulasamma and the same was issued by her husband in favour of Smt. Thulasamma. The Accused has not chosen to prove her defence by adducing cogent and convincing evidence before this court to believe her defence and to discard the case of the Complainant.
32. The oral evidence adduced before this court by the Accused, will not take away the case of the Complainant and it will not rebut the presumption available to this Complainant u/Sec.139 of N.I. Act. There is nothing on record to believe that the Complainant has filed this false case against this Accused even though there was no any loan transaction in between them and even though the Accused has not borrowed any loan from him.
33. As I have discussed supra, the entire burden is on this Accused to rebut the presumption available to this Complainant u/Sec. 139 of N.I. Act and also to prove her defence that she has 16 C.C.No.3706/2012 given her duly signed blank cheque in favour of her husband to give it to the same in favour of the mother of this PW1 towards the security of the loan amount borrowed from her husband from the mother of this PW1 and subsequently, the Complainant colluding with his mother misused, the blank cheque of this Accused, created and concocted the same as Ex.P.1 for Rs.3,00,000/- and filed this false complaint.
34. As I have discussed supra, there is no sufficient evidence from the side of this Accused to believe her defence. The Accused except putting some suggestions to PW1 during her cross- examination, nothing has been elicited from his mouth to disbelieve his testimony or to discard his evidence. Likewise, when this Accused was questioned u/Sec. 313 Cr.P.C. by this court, the accused except denying the incriminating evidence made against her by PW1 has not put forth any evidence before this court. As I have discussed supra, 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.
35. As per the provisions of Sec.118, which reads thus:
a. Of consideration - that every negotiable instrument was made or drawn for consideration, 17 C.C.No.3706/2012 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;
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;
Like wise he also failed to rebut the presumption available u/s. 139 of NI 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.18 C.C.No.3706/2012
36. There is nothing on record from the side of this Accused to believe her defence and to discard the case of the Complainant. The Learned Counsel for the Accused has vehemently argued that the complaint filed by the Complainant, is not maintainable as the Complainant has not proved his financial capacity to advance the loan amount of Rs.3,00,000/- to this Accused. He argued that the Complainant has not produced any documents before this court to prove that as on date of Ex.P.1 cheque there is legally recoverable debt or other liability on this Accused and this Accused in order to discharge her liability, had issued the cheque and therefore, the Accused is not liable for the sentence. He argued that the Complainant has not produced any documents before this court to prove the financial capacity to advance the loan amount of Rs.3,00,000/-. He argued that the Complainant has not produced documents before this court to prove that he had advanced a sum of Rs.3,00,000/- to this Accused and this Accused in order to repay the loan amount, had issued the cheque and the same was bounced.
37. He argued that the initial liability is always on this Complainant to prove his case to the satisfaction of the court and this only after the Complainant discharge his burden, the 19 C.C.No.3706/2012 presumption u/Sec.139 of N.I. is available to him and the burden will shift on this Accused to rebut the said presumption available to this Complainant. He argued that the Complainant has failed to discharge his initial burden to the satisfaction of the court and therefore the burden will not shift on this Accused to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act and hence by considering all these aspects and by giving benefit of doubt in favour of this Accused, the Accused has to be acquitted. The arguments canvassed by the Learned Counsel for the Accused is not convinced this court.
38. Admittedly, the Accused has admitted that she has personally received the notice issued as per Ex.P.3 and even after receipt of Ex.P.3 notice, she did not resist the claim of the Complainant by sending her reply nor she has denied the contents of the notice. Moreover, the Accused has stated that her husband had borrowed loan amount from the mother of this Complainant and towards the security of the said loan amount, he had given her duly signed blank cheque to the mother of this Complainant. The Accused except taking this defence, has not chosen to prove her defence to the satisfaction of the court. In such situation, the arguments canvassed 20 C.C.No.3706/2012 by the Learned Counsel for the Accused, cannot be acceptable and it holds no merit.
39. Likewise, the judgment relied by the Learned Counsel for the Accused in support of his arguments reported in (2014) 1 SCC (Cri) 791 between John K. Abraham Vs. Simon C. Abraham and Another wherein it is held that;
"In order to draw presumption u/Sec.118 r/w S.139, burden lies on Complainant to show: (i) that he had the requisite funds for advancing the sum of money/loan in question to Accused,
(ii) that the issuance of cheque by Accused in support of repayment of money advanced was true, and (iii) that the Accused was bound to make payment as had been agreed while issuing cheque in favour of Complainant."
AIR 2008 1325 between Krishna Janardhan Bhat Vs. Dattatraya G. Hegde wherein it is held that;
"Presumption under Section 139 merely raises presumption in favour of holder of cheque that same has been issued for discharge of any debt or other liability - Existence of legally recoverable debt - is not a matter of presumption under Sec. 139."
2012 (3) KCCR 2057 (Karnataka High Court) between Veerayya vs. G.K. Madivalar wherein it is held that;
"The Complainant except cheque no other document were produced. No proof as to other source of income from the land. No evidence that the Complainant had bank balance of Rs.2,00,000/- on the day he has alleged to have advanced the loan - His Civil Suit was also 21 C.C.No.3706/2012 dismissed as not proved - Accused contention that cheque was given to his Counsel was misused by the Complainant and his Advocate is probable. When the financial capacity of Complainant is questioned, the Complainant has to establish his financial capacity to advance the loan amount."
2010 (2) DCR 700 (Karnataka High Court) between Amzad Pasha Vs. H.N. Lakshmana wherein it is held that;
"If service of notice under Section 138 of N. I. Act is not proved therefore finding that Complainant has not complied with the requirement of provision of Section 138 of N.I. Act is just and proper."
It is further held that ;
"Since there is no evidencing of loan transaction has come into existence therefore Magistrate is justified in holding that case of Complainant that he had lent Rs.4,00,000/- to the Accused is highly improbable and not acceptable."
2009 (1) KCCR 508 (Karnataka High court) between A. Viswanatha Pai Vs. Vivekananda S. Bhat wherein it is held that;
"The Complainant has to prove the existence of legally recoverable debt payable to him by the Accused as on date of issuance of cheque by the Accused and that in order to rebut the said presumption to be drawn in favour of the Complainant , the Accused need not prove his defence version beyond all reasonable doubt and it is sufficient, if he brings on record, by adducing his own evidence or by eliciting from the complainant and his witness that his 22 C.C.No.3706/2012 defence is plausible and probable without getting himself examined as a witness."
2008 (6) AIR Kar R. 432 between Shiva Murthy Vs. Amruthraj wherein it is held that;
"Presumption under - cannot be drawn unless Complainant proves existence of legally enforceable debt or liability - Accused alleged to have borrowed money from Complainant - Except the self-serving statement of the Complainant that on the date of lending the money itself, the Accused issued the cheque in question, there is no other evidence to substantiate the same - No consideration was paid by Complainant on date on which cheque was drawn by Accused - Statutory presumption u/Sec. 118(a) of the ?Act stands rebutted- Complainant was under an obligation to prove the existence of the debt by convincing evidence - No documentary evidence in proof of money lending to Accused - Complainant , person, belong to below poverty line - Not explained how he could muster his resources to pay Rs.75,000/- as loan to Accused that tool without charging any interest - Complainant failed to prove existence of legally enforceable debt
- No presumption u/Sec. 139 can be drawn - Accused entitled to be quitted. "
Unreported judgement of the Hon'ble Apex Court in Cri. Appeal No.2402/2014 between K. Subramani Vs. K. Damodara Naidu wherein the Apex Court held that;
"The Complainant has to prove his source of income to lend a sum of Rs.14,00,000/- to this Accused and he has to prove that he had the financial capacity to advance huge loan amount to this Accused. When the Complainant has to failed to prove his financial capacity by adducing the documentary evidence before the court, the Accused is entitle for acquittal.23 C.C.No.3706/2012
Unreported judgment of the Hon'ble High Court of Karnataka in Cri. Appeal No.301 of 2008 between C.R. Venkatesh Vs. S.K. Sadhashiva wherein it is held that;
"The Complainant has to specifically state when exactly he advanced the loan amount to this Accused and when exactly the Accused was issued the cheque towards repayment of the loan amount. To attract the provisions of 138 of N.I. Act. It is necessary for the Complainant atleast to plead the date, month or year in which the loan was advanced tot this Accused. In the absence of the material aspects, the Accused is entitle for acquittal."
Unreported judgment of the Hon'ble High Court of Karnataka in Appeal No.457/2003 between Subramani Vs/. Kenchappa wherein it is held that;
" When the Complainant has failed to prove that he had sufficient source of income to lend loan to the respondent and when the Complainant has taken up the said defence that the Complainant and his wife had mortgaged the property and raised the mortgaged money and he had the financial capacity, then he has to prove his case by documentary evidence before the court failing which the Accused is entitle for acquittal."
40. The law laid down in these judgments are not applicable to the facts of the present case on hand and it will not helpful to the case of the Accused to prove her defence. Here in this case, the Accused had admitted the loan transaction with the mother of this Complainant by her husband and she has taken up the defence that her husband whenever needed loan had borrowed from the mother of this Complainant. The Accused has not chosen to examine her husband before this court to prove her defence. In such situation, the 24 C.C.No.3706/2012 defence taken by the Accused, cannot be acceptable and it holds no merit.
41. Per contra, the learned Counsel for the Complainant has vehemently argued that the Complainant before filing of this complaint has followed all the procedures prescribed under law and this Accused even after receipt of the Legal Notice, neither chosen to make payment of the cheque amount, nor she has replied the notice by denying the transaction and in such situation, an adverse inference can be drawn against this accused that she after admitting the contents of the and also after admitting the issuance of cheque toward the repayment of the loan amount, had kept quite and during the stage of trial, has taken up the false defence that her cheque was given by her husband towards the security of the loan amount in favour of the mother of the Complainant. Now at this stage she cannot deny the issuance of cheque towards the repayment of the loan amount, in favour of the Complainant is fully convinced this court.
42. The written arguments filed by the learned Counsel for the Complainant that the Accused has utterly failed to prove that the Ex.P.1 cheque was given by her to her husband to give to the mother of the Complainant towards the security of the loan amount 25 C.C.No.3706/2012 borrowed by him by adducing the documentary evidence before this court is also convinced this court.
43. 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 this 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.
44. 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.3,55,000/-(Rupees Three lakhs and fifty-five thousand only). In any default to pay fine amount shall under go simple imprisonment for 6 months.26 C.C.No.3706/2012
Out of fine amount recovered under Section 357 of Cr.P.C. a sum of Rs.3,50,000/- (Rupees three 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 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 24th day of February, 2015) (ISHRATH JAHAN ARA) XIX ADDL.C.M.M. Bangalore A NNEXURE:
Witnesses examined on behalf of the Complainant:
PW.1 Mr. K. Vijaykumar Witnesses examined on behalf of the Accused: D.W1 Smt. Kowsalya Vijay, 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 Legal notice Ex.P.4 Postal Acknowledgement Due Card Ex.P.5 Complaint Ex.P.5(a) Signature of the Complainant
Documents marked on behalf of the Accused: Nil XIX ACMM, B'lore.27 C.C.No.3706/2012