Bangalore District Court
Smt. Fazlunnisa vs Smt. Ramathunnisa on 30 March, 2016
IN THE COURT OF THE XVIII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BANGALORE
DATED : THIS THE 30TH DAY OF MARCH 2016
PRESENT: LAKSHMINARAYANA BHAT.K., B.A., LL.B.
XVIII ADDL.C.M.M., BANGALORE
C.C.NO: 38043/2011
Complainant: Smt. Fazlunnisa,
W/o. Late. Syed Akbar,
Aged about 50 years,
Residing at No: M-14,
2nd Cross,
4th Main, Kushal Nagar,
K.G.Halli,
Bangalore - 560 045.
(Represented by
Ms. S. Bhagyalakshmi., Advocate)
V/s.
Accused : Smt. Ramathunnisa,
W/o. Mohammed Sadiq,
Residing at No: 22/1,
1st Cross,
Papanna Block,
Gandhinagar,
R.T.Nagar,
Bangalore - 560 032.
(Represented by Sri.Ahamed.S.N.,
Advocate)
Offence complained of: U/s.138 of N.I.Act
Plea of accused: Pleaded not guilty
Final order Accused is found guilty
Date of order: 30/3/2016
2 CC.No: 38043/2011
JUDGMENT
The complaint was filed against the accused for the offence punishable under Section 138 of Negotiable Instruments Act (hereinafter in short referred as N.I. Act.).
2. After filing of the complaint, cognizance of the offence was taken. After recording sworn statement, in pursuance of summons, presence of the accused was secured and she was enlarged on bail. The substance of accusation was recorded and the accused pleaded not guilty.
3. To prove the complaint averments, the complainant was examined as P.W.1 and has produced documents marked as per Ex.P.1 to Ex.P.13. The accused was examined under Section 313 of Cr.P.C. She has filed written statement and also produced documents in support of her defence. The accused has not led any oral evidence.
4. Heard the arguments. The complainant and accused have filed memorandum of written arguments and also placed reliance on following reported Judgments.
For the Complainant :-
(1) 2010 (2) DCR 231 (Madras High Court) in Spenser David V/s. Virjin Mary.
(2) 2012 (2) DCR 445 (Punjab and Haryana High Court) in Surinder Singh V/s. State of Haryana and another. 3 CC.No: 38043/2011 (3) 2011 (2) DCR 740 (Madras High Court) in A. Sakthivel V/s. K.R.Navaneetha Krishnan.
(4) 2011(2) DCR 337 (Supreme Court of India) in Anil Sachar and another V/s. M/s. Shree Nath Spinners P. Ltd and others etc. (5) 2011(2) DCR 704 (Kerala High Court) in Seethamma.L. Teacher V/s. Paily, Thaickal House.
For the Accused :-
(1) 2007(1) DCR 417 (Delhi) in M/s. Pine Product Industries and another V/s. M/s. R.P.Gupta & Sons and another. (2) 2007(1) DCR 562 (Madras) in P. Jayaraj V/s. R. Saroja. (3) 207(2) DCR 397 (Karnataka) in V.Rama Shetty V/s.
N.Sasidharan Nayar.
(4) 2010(1) DCR 7 (Bombay) in Shri Prabhakar Rajuji Shet V/s. Ms. Shrikanti M. Arolkar and another.
(5) 2010(1) DCR 618 Bombay) in Smt. Nanda W/o. Dharam Nandanwar V/s. Nandkishore S/o. Talakram Thaokar. (6) 2007 (1) DCR 537 (Kerala) in P.Jithendranadh V/s. M/s. Walson Laboratories and others.
(7) 2010(1) DCR 133 (Jharkand) in Ram Prasad Sahu V/s. Pandey Girl and another.
(8) 2007(1) DCR 595 (M.P.) in Laxmandas V/s. Amar Rochwani.
(9) 2010(1) DCR 42 (Bombay) in Shri John Fernandes V/s. Shri Dilip Tukaram Dessai and another.
(10) 2007(2) DCR 608 (Karnataka) in M.Senguttuvan V/s. Mahadevaswamy.
5. After analyzing the averments made in the complaint, oral and documentary evidence placed on record and after hearing the arguments, 4 CC.No: 38043/2011 at this stage the points that arise for my determination are:-
1) Whether the complainant has proved Ex.P.1 to Ex.P.3 cheques issued by the accused in discharge of part repayment of the loan came to be dishonoured and even after service of notice, the accused had failed to pay the amount and thereby she is guilty of the offence punishable under Section 138 of N.I.Act?
2) What order?
6. My findings on the aforesaid points are as under:-
POINT NO.1 : In the Affirmative, POINT NO.2 : As per final order, for the following:-
REASONS
7. POINT NO.1:- As per the complaint averments, the complainant and accused are claimed to be good friends and the accused had borrowed loan of Rs.11 lakhs from the complainant on various dates from February 2010 stating she was facing personal problems and was in deep debts. She had promised to repay the said amount to the complainant within three months. She has also executed loan agreement in favour of the complainant. It is submitted in discharge of the aforesaid debt, the accused had issued the following four post dated cheques in favour of the complainant drawn on Amanath Co-Operative Bank Ltd., J.J.R. Nagar Branch, Bengaluru.
5 CC.No: 38043/2011
Sl.No. Cheque Number Date Amount
1 363593 15/4/2011 5,00,000/-
2 363591 28/6/2011 50,000/-
3 162042 3/7/2011 2,00,000/-
4 162043 4/7/2011 3,50,000/-
Total amount 11,00,000/-
The complainant presented the cheques bearing No: 363593 dated 15/4/2011 for Rs.5 lakhs, but it was dishonoured with an endorsement "figures and dates have been altered" and hence cannot be presented until the rectification is made by the accused, which was not done by her. Thereafter, the complainant claimed she has presented the remaining three cheques dated 28/6/2011, 3/7/2011 and 4/7/2011 for a total amount of Rs.6 lakhs, but all the cheques were returned unpaid with an endorsement dated 25/7/2011 as "Funds Insufficient". Thereafter, the complainant had sent legal notice to the accused dated 9/8/2011 calling upon her to make payment of the dishonoured cheque amount. The said notice returned to the sender with an endorsement "Intimation delivered, unclaimed, returned to the sender". It is further submitted the notice issued to the accused through speed post was duly served and after service, she has failed to make payment. The complainant in her affidavit filed in lieu of examination-in-chief deposed as per the averments made in the complaint.
6 CC.No: 38043/2011
8. The accused has admitted Ex.P.1 to Ex.P.3 cheques relates to her Bank account and also the signature appearing in those cheques. The accused has suspected the complainant might have taken blank signed cheques from the house of the accused when she had shifted her house. The accused has alleged the complainant has filled blank signed cheques and misused the instrument for wrongful gain. The accused further submitted there was no necessity for her to borrow any loan from the complainant as alleged in the complaint. It is submitted the complainant was not financially capable to advance the loan. According to the accused, Ex.P.1 to Ex.P.3 cheques were not issued in favour of the complainant in discharge of any debt or other liability. For the aforesaid reasons she has prayed for dismissal of the complaint.
9. The complainant and accused are acquaintance with each other is not in dispute. The accused has further admitted her signature appearing in Ex.P.1 to Ex.P.3 cheques and those cheques are pertaining to her Bank account. As per Section 139 of N.I. Act, there is a statutory presumption in favour of the complainant that unless the contrary is proved Court shall presume that the cheque had been issued in discharge of any debt or liability. Therefore, the court has to consider whether during cross-examination of the complainant and from other documentary and circumstantial evidence the accused is able to rebut the presumption appearing in favour of the complainant under Section 7 CC.No: 38043/2011 139 of the Act. In Ex.P.7 statutory demand notice, complaint averments and affidavit evidence of P.W.1, it is alleged from February 2011 the accused had borrowed hand loan of Rs.11 lakhs from the complainant on different dates. In these documents, the complainant has not disclosed the date of advancement of loan and whether it was advanced in a single installment or in different installments. The complainant during her cross-examination dated 27/3/2015, in Para No.3 has deposed, on 28/6/2011, 3/7/2011 and 4/7/2011 she had advanced Rs.50,000/-, 2,00,000/- and Rs.3,50,000/- to the accused. It appears the witness misunderstood the question and has deposed the date of Ex.P.1 to Ex.P.3 cheques and the cheque amount in her evidence.
10. The complainant has produced Ex.P.13 loan agreement dated 26/2/2011 alleged to have been executed by the accused. As per the document, it shows the accused had borrowed loan of Rs.11 lakhs from the complainant on various dates and she had promised to repay the said amount within four months. In the said agreement, there is also reference in discharge of the aforesaid debt the accused had issued four post dated cheques in favour of the complainant drawn on Amanath Co- Operative Bank Ltd., J.J.R. Nagar Branch, Bengaluru as hereunder "Rs.5,00,000/- cheque No: 363593 dated 15/4/2011. Rs. 50,000/- cheque No: 363591 dated 28/6/2011.
Rs. 2,00,000/- cheque No: 162042 dated 3/7/2011. Rs. 3,50,000/- cheque No: 162043 dated 4/7/2011." 8 CC.No: 38043/2011 The details as shown in Ex.P.13 document also includes Ex.P.1 to Ex.P.3 cheques issued by the accused in favour of the complainant for a total amount of Rs.6 lakhs. During cross-examination of P.W.1, the accused has denied execution of Ex.P.13 agreement. The accused has not even suggested during cross-examination of P.W.1 disputing her signature and LTM appearing in Ex.P.13 loan agreement. The burden to disprove execution of Ex.P.13 is upon the accused. The signature of the accused appearing in Ex.P.13 loan agreement and the admitted signature of the accused appearing in Ex.P.1 to Ex.P.3 cheques is similar and appears to be made by the same person. The only suggestion tendered during cross-examination of P.W.1 is that the accused has not executed Ex.P.13 agreement.
11. In order to prove advancement of loan and also how the complainant has mobilised the loan amount, she has examined P.W.2 and P.W.3 witnesses. As per the evidence of P.W.2 and P.W.3, they have advanced Rs.2 lakhs and Rs.4 lakhs respectively to the complainant. P.W.2 is also a relative of the complainant. They have specifically deposed after borrowing the amount from them, the complainant had advanced the said amount as hand loan. P.W.2 further deposed the complainant has repaid Rs.1 lakh out of Rs.2 lakhs advanced in her favour. The accused during cross-examination of P.W.2 and P.W.3 has disputed the financial capacity of the witness to advance Rs.2 lakhs and 9 CC.No: 38043/2011 Rs.4 lakhs to the complainant. As per the evidence of P.W.2, during cross-examination the witness claimed she was getting Rs.10,000/- to Rs.11,000/- from building rent. During cross-examination, P.W.3 has admitted she is not having any documents to prove in February 2010 she had ready cash of Rs.4 lakhs. P.W.3 has admitted out of Rs.4 lakhs advanced, the complainant has repaid Rs.2 lakhs and she is still in due for Rs.2 lakhs balance amount. As per the evidence of P.W.3, her husband is doing leather business and out of the income of her husband advanced Rs.4 lakhs to the complainant. The evidence of P.W.2 and P.W.3 is relevant only to prove they have advanced money in favour of the complainant. Their evidence is not relevant to prove the said amount was advanced in favour of the accused. Even though P.W.2 and P.W.3 have deposed they were aware that the complainant had advanced the amount to the accused as hand loan, P.W.2 and P.W.3 are not witnesses to the alleged transaction.
12. After dishonour of Ex.P.1 to Ex.P.3 cheques as per Ex.P.4 to Ex.P.6 memo issued by the Bank as "Funds Insufficient", the complainant had sent Ex.P.7 statutory demand notice to the accused in compliance to Section 138(b) of N.I. Act. The notice sent to the accused through courier service as per Ex.P.9 returned to the complainant with an endorsement "Party refused" and Ex.P.12 notice sent through registered post returned with an endorsement "Intimation delivered, not 10 CC.No: 38043/2011 claimed, returned to the sender". Ex.P.11 is the postal acknowledgement in proof of service of notice on the accused through speed post. In Ex.P.11 postal acknowledgement, there is a signature of the accused and the said signature is similar to the admitted signature of the accused appearing in Ex.P.1 to Ex.P.3 cheques. During cross-examination of P.W.1, the accused has contended non-service of demand notice sent on behalf of the complainant. In order to prove the address of the accused, that on 9/8/2011 she was not residing in the given address as per Ex.P.7, the accused has not produced any documents. As per Section 27 of General Clauses Act, there is a presumption in favour of the complainant regarding service of letter sent through registered post. Therefore, it is the burden of the accused to rebut the presumption by placing contra evidence. Mere denial of the signature of the accused appearing in Ex.P.11 postal acknowledgement is not sufficient. Unless the contrary is proved, Court shall presume that the notice sent by the complainant through speed post was duly received by the accused as per Ex.P.11 acknowledgment. In this regard I have referred the Judgment of Hon'ble Apex Court reported in 2007 AIR SCW 3578 in C.C.Alavi Haji V/s. Palapetty Muhammed and another. In Para No.17 of the said Judgment, Hon'ble Court held "It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before 11 CC.No: 38043/2011 filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the Court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C.Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran's case, if the giving of notice in the context of Clause(b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act".
Therefore, the accused has failed to prove the complainant has failed to comply Section 138(b) of N.I. Act or regarding non-service of statutory demand notice.
13. The following are details of Ex.P.1 to Ex.P.3 cheques drawn on Amanath Co-Operative Bank Ltd., J.J.R. Nagar Branch, Bengaluru for a total amount of Rs.6 lakhs.
12 CC.No: 38043/2011
Sl.No. Cheque Number Date Amount
1 Ex.P.1 == 363591 28/6/2011 50,000/-
2 Ex.P.2 ==162043 4/7/2011 3,50,000/-
3 Ex.P.3 == 162042 3/7/2011 2,00,000/-
Total amount 6,00,000/-
The accused has not forwarded any satisfactory explanation the necessity or reason behind she was keeping blank signed cheques in her house. She has also not explained the possibility how the complainant came to the possession of those 4 blank signed cheques. Ex.P.1 cheque bearing No: 363591 and other two cheques marked as per Ex.P.2 and Ex.P.3 are pertaining to two different cheque books. Ex.P.2 and Ex.P.3 are having consecutive serial numbers and those cheque leaves are from the same cheque book. The accused in order to disprove the complaint averments and to substantiate her defence has not produced cheque book record slip of Ex.P.1 to Ex.P.3 cheques. From the cheque book record slip, we can ascertain the date on which the accused appears to have issued the cheque, name of the payee and other particulars. The defence of the accused is also silent how many signed cheque leaves have been lost. The accused having admitted her signature appearing in Ex.P.1 to Ex.P.3 cheques, any effort on the part of the accused for cross- examination of the complainant regarding the signature and other contents of the cheques are filled in different ink and hand writing has to 13 CC.No: 38043/2011 be discarded. The possibility of the accused deliberately affixing her signature in different ink and pen and filling the other contents through some other person by different ink and pen cannot be totally ruled out. The accused being the custodian of Ex.P.1 to Ex.P.3 cheques has to explain how those cheques have been misused and went to the possession of the complainant. The complainant has not taken any steps for recovery of balance amount of Rs.5 lakhs from the accused in respect of cheque No: 363593 dated 15/4/2011 is not a ground to suspect the complaint alleged transaction or regarding the liability of the accused in respect of Ex.P.1 to Ex.P.3 cheques, for an extent of Rs.6 lakhs. Even after the accused came to know that the cheques have been lost or misused, she had not given any instructions to the Bank for stop payment. The accused has also not produced the Bank passbook or Bank account extract in respect of Ex.P.1 to Ex.P.3 cheques. From the aforesaid document, we can ascertain whether any other cheques in respect of the same series are presented for encashment through the account of the accused.
14. The accused after service of summons she has appeared before the Court and to the vakalath authorised to her Advocate, in her substance of accusation, bail bond and examination under Section 313 of Cr.P.C., she had affixed her signature in English. The admitted signature of the accused in Ex.P.1 to Ex.P.3 cheques and the signature 14 CC.No: 38043/2011 affixed by the accused in the Court documents are not similar. Therefore, the accused is in the habit of changing her signature in order to create false defence to avoid payment of cheque amount is also probable. In complaint filed for the offence punishable under Section 138 of N.I. Act, the complainant is not required to prove the purpose for which the accused had borrowed loan. As per the evidence of P.W.1 to P.W.3, they have consistently deposed, to meet the medical expenses the accused had borrowed loan. Therefore, it is not the duty of the complainant to establish the relative of the accused was hospitalised and for that purpose the accused had borrowed loan. In the case on hand, during cross-examination of P.W.1, the accused has failed to rebut the presumption appearing in favour of the complainant under Section 139 of the Act. In this regard I have referred Judgment reported in AIR 2010 Supreme Court 1898 in Rangappa V/s. Mohan case. In Para No.14 of the Judgment Hon'ble Apex Court held, it is a settled proposition that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubt about existence of legally enforceable debt or liability, the prosecution can fail. Therefore, my findings on Point No.1 is in the affirmative.
15. POINT NO.2:- In view of my findings on Point No.1., the accused is liable to be convicted for the offence punishable under Section 15 CC.No: 38043/2011 138 of N.I. Act. Ex.P.1 to Ex.P.3 cheques are dated 28/6/2011, 4/7/2011 and 3/7/2011and already four years has been lapsed. Therefore, the complainant is entitled for excess amount in addition to Ex.P.1 to Ex.P.3 cheques. Hence, I proceed to pass the following:-
ORDER Acting under Section 255 (2) of Cr.P.C, accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act 1881. She is sentenced to pay fine of Rs.8,75,000/- (Rupees Eight lakhs Seventy Five Thousand Only) and in default shall undergo simple imprisonment for 1 (One) year.
Acting under Section 357 (1) (b) of Cr.P.C, out of the fine amount the complainant is entitled for Rs.8,50,000/- (Rupees Eight Lakhs Fifty Thousand Only) as compensation.
Acting under Section 357 (1) (a) of Cr.P.C, the balance amount of Rs.25,000/- (Rupees Twenty Five Thousand Only) is defrayed to the State for the expenses incurred in the prosecution. (Dictated to the Stenographer, transcribed by her, corrected, revised and signed then pronounced by me in the open court on this the 30th day of March 2016).
(LAKSHMINARAYANA BHAT.K) XVIII A.C.M.M., BANGALORE.16 CC.No: 38043/2011
ANNEXURE
1) LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
P.W.1 : Smt. Fazlunnisa. P.W.2 : Smt. Farzana. P.W.3 : Smt. Famida.
2) LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P.1 to Ex.P.3 : Three cheques.
Ex.P.1(a) to 3(a) : Signatures of the accused.
Ex.P.4 to 6 : Bank endorsements. Ex.P.7 : Office copy of demand notice. Ex.P.8 : Postal receipt. Ex.P.9 : Postal cover. Ex.P.10 : Courier receipt. Ex.P.11 : EMS Speed post acknowledgment. Ex.P.12 : Postal cover. Ex.P.13 : loan agreement.
3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:-
- Nil -
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED: -
- Nil -
(LAKSHMINARAYANA BHAT.K) XVIII A.C.M.M., BANGALORE.17 CC.No: 38043/2011
(Judgment pronounced in Open Court vide a separate Order) ORDER Acting under Section 255 (2) of Cr.P.C, accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act 1881. She is sentenced to pay fine of Rs.8,75,000/- (Rupees Eight lakhs Seventy Five Thousand Only) and in default shall undergo simple imprisonment for 1 (One) year.
Acting under Section 357 (1) (b) of Cr.P.C, out of the fine amount the complainant is entitled for Rs.8,50,000/- (Rupees Eight Lakhs Fifty Thousand Only) as compensation.
Acting under Section 357 (1) (a) of Cr.P.C, the balance amount of Rs.25,000/- (Rupees Twenty Five Thousand Only) is defrayed to the State for the expenses incurred in the prosecution.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
XVIII A.C.M.M., BANGALORE.