Bangalore District Court
Smt.Martha .K vs Smt. Dhanalakshmi on 19 December, 2018
1 C.C.NO.23268 OF 2016
IN THE COURT OF THE XII ADDL. CHIEF METROPOLITAN
MAGISTRATE, AT BENGALURU
Dated this the 19th Day of December 2018
Present: Sri. Rajkumar .S.Amminbhavi., B.Com., LLB (Spl)
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
C.C.No. 23268/2016
Complainant: Smt.Martha .K
W/o. Late Kantharaj
Aged about 58 Years
R/at. No.125, 4th Block, Kalappa
Layout, Doddabommasandra
Vidyaranyapura Post
Bengaluru-560 097.
(By ramesh .V.L., Adv)
- Vs -
Accused: Smt. Dhanalakshmi
Sai Ladies Tailors
Behind Balaji Floor Mill
Abbigere Main Road
Lakshmipura Cross
Vidyaranyapura Post
Bengaluru-560 097.
(By. K.S.Sreekantha., Adv)
Offence complained of: U/s. 138 of the Negotiable
Instruments Act
Plea of the accused: Pleaded not guilty
Final Order: Accused is Convicted
Date of order: 19.12.2018.
******
2 C.C.NO.23268 OF 2016
JUDGMENT
This is a complaint under Sec.200 of Cr.PC against the accused for the offence punishable under Sec.138 of the Negotiable Instruments Act.
2. The facts of the complaint in brief are that, both the accused and the complainant are known to each other as both are close friends. On account of well acquainted with the complainant, the accused has approached the complainant and requested for advancement of the hand loan an amount of Rs.60,000/- during the month of August 2015 for her personal and domestic purposes and accordingly, considering the request of the accused and believing the words of the accused and on the humanitarian ground, the complainant has advanced an amount of Rs.60,000/- and on the said date, the accused has agreed and undertaken that, she would repay the borrowed loan amount within a period six months together with interest at the rate of 12% per annum. After lapse of stipulated period, on repeated request and demand made by the complainant to the accused for repayment of the borrowed loan amount and at that time, for discharge the hand loan amount, the accused had issued cheque bearing No.514778, dated: 09.02.2016 for a sum of Rs.60,000/- drawn on Canara Bank, Vidyaranyapura Branch, Bengaluru in favour of the complainant and assured that, 3 C.C.NO.23268 OF 2016 the said cheque would be honoured on its presentation and accordingly, as per the assurance made by the accused, the complainant has presented the said cheque for encashment through her banker i.e., Syndicate Bank, Jalahalli Branch, Bengaluru, but it was dishonoured with an endorsement as "Funds Insufficient" and thereafter, the complainant has informed the said fact to the accused, but the accused did not responded the same. Hence, the complainant had got issued the legal notice on 06.04.2016 by RPAD calling upon her to repay the said borrowed loan amount within 15 days from the date of receipt of this legal notice and it was duly served upon the accused. Despite of service of the legal notice, the accused neither paid the borrowed the loan amount nor replied the legal notice issued by the complainant. Hence, the complainant had constrained to file a complaint against the accused for the offence punishable under Section 138 of N.I. Act., which is well within time and based on the records available on record cognizance has been taken and registered it PCR.
3. After recording of the sworn statement of the complainant and complaint is registered in criminal case register and after issuance of summons to the accused, pursuant to the summons the accused had appeared before this Court through her counsel and enlarged on bail. The substance of accusation was recorded and read 4 C.C.NO.23268 OF 2016 over to the accused in her vernacular. She pleaded not guilty. Hence, claims for trail.
4. In order to prove the case of the complainant, the complainant got herself examined as PW.1 & got 6 documents marked as Ex.P.1 to Ex.P.6 and PW-1 has been fully cross-examined and the statement of accused under Section 313 of Cr.P.C., was recorded and the accused has denied the incriminating statement against her and the accused herself examined as DW-1 and none of the documents marked in support of his defence and after completion of the defence evidence, the matter was posted for arguments.
5. Heard arguments.
6. The following points arise for my determination;
1. Whether the complainant proves that the accused had issued Cheque bearing No.514778, dated: 09.02.2016 for a sum of Rs.60,000/- drawn on Canara Bank, Vidyaranayapura Branch, Bengaluru, for discharge of the amount and when the said cheque presented for encashment, it was dishonoured with an endorsement "Funds Insufficient" and after issuance of the legal notice she fails to repay the said amount and Thereby, the accused have committed offence punishable U/s. 138 N.I.Act?
5 C.C.NO.23268 OF 20162. What order ?
7. My answer to the above points are;
Point No.1 : In the Affirmative
Point No.2 : As per final order for the
following;
REASONS
8. POINT NO.1: On perusal of the evidence of PW-1, she has reiterated as per the averments made in the complaint and she has got marked 6 documents namely, cheque which is marked as Ex.P1, the signature of the accused therein which is marked as Ex.P1(a), bank endorsement which is marked as Ex.P2, the office of the legal notice which is marked as Ex.P3, two postal receipts which are marked as Ex.P4 & Ex.P5, postal acknowledgment which is marked as Ex.P6.
9. During the course of cross of PW-1 she has deposed that, she is working as tailoring work in her house as per the address mentioned in the cause title of the complaint is true and correct. She denied the suggestion that, the address mentioned in the cause title of complaint, she was running one tailoring shop. She deposed that, he has given one shop to the accused for running the said shop on rental basis. She know one Srinivas and he was residing to 6 C.C.NO.23268 OF 2016 her house on rental basis and now he is residing in his own residential house. She denied the suggestion that, herself and one Srinivas are running tailoring work for the last 5 years in her house. She do not know whether, one Srinivas was running the alleged chit transaction and the accused who being one of the subscriber of the alleged chit run by Srinivas for 30 months paying Rs.1000/-. She denied the suggestion that, the accused has given the cheque in question for the security purpose, when she being the subscriber of the alleged chit run by one Srinivas. She deposed that, the accused has borrowed the loan in question from her and for discharge the loan in question, she had issued cheque in question to her. She denied the suggestion that, the accused has not at all borrowed the loan in question from her and she had not at all issued cheque in question for discharge the loan in question as the accused who being the subcriber of the alleged chit run by one Srinivas and at that time, she had issued cheque in question for the security purpose and same has been misused and at the instigation of the said Srinivas, she had filed the present complaint against the accused with an intention to get wrong full gain.
10. During the course of defence evidence, the accused herself examined as DW-1 by way of filing chief affidavit, wherein, she had specifically stated that, she know the 7 C.C.NO.23268 OF 2016 present complainant as she was tenant under the complainant's house for a period from 1993 to 1994 and in the year 1994 she had shifted her house to No.84, Doddabommasandra, Bengaluru. She deposed that, she was not at all borrowed the loan in question from the complainant and she had not at all issued cheque in question to the complainant for discharge the loan in question. She deposed that, she being the subscriber of the alleged chit run by one Srinivas and at that time, she had issued cheque in question for the security purpose and same has been misused and at the instigation of the said Srinivas, the present complainant had filed present complaint with an intention to get wrong full gain.
11. During the course of cross of DW-1, she had deposed that, she was and is doing tailoring work. She know the complainant since 1993. She denied the suggestion that, on account of well acquainted with each other, there was financial transaction took place between herself and the complainant. She deposed that, she had not produced any documents to show that, she being the subscriber of the alleged chit run by one Srinivas. It is true that, Ex.P1 cheque belonging to her own bank account and the signature found on the Ex.P1(a) is her own signature. She denied the suggestion that, she was borrowed the loan in question from the complainant and she had issued cheque 8 C.C.NO.23268 OF 2016 in question for discharge the loan in question without having sufficient in her bank account with an intention to defeat the claim of the complainant.
12. On perusal of the averments made in the complaint and also documents produced by the complainant is that, it is an admitted fact that, even after issuance of the legal notice by the complainant to the accused prior to filing of the said complaint which was duly served and after receipt of the legal notice, the accused has not given reply notice. Therefore, prior to filing of the said complaint the complainant had complied all the necessary ingredients under Section 138 of N.I.Act. There is no dispute that, Ex.P1 cheque is belonging to her own bank account and the signature found on the Ex.P1(a) is her own signature.
13. It is case of the complainant is that, both the complainant and accused are known to each other and on account of well acquainted with the complainant, the accused has approached the complainant and requested for the advancement of loan amount of Rs.60,000/- and accordingly, the complainant has advanced the loan an amount of Rs.60,000/- and subsequently, for discharge the loan in question the accused has issued cheque in question and assured that, the said cheque would be honoured on its presentation and after presentation of the 9 C.C.NO.23268 OF 2016 said cheque, it was dishonoured and same has been informed to the accused, but the accused not responded the same and thereby, the complainant has got issued legal notice through his counsel and same has been duly served upon the accused and despite of service of the legal notice, the accused neither paid the borrowed loan amount nor replied the legal notice issued by the complainant. Hence, the complainant has filed the present complaint.
14. On the other hand, the accused has taken specific defence during the cross of PW-1 and during the course of defence evidence that, she was not at all borrowed the loan in question from the complainant and she was not all issued cheques in question to the complainant and further, she had taken specific defence that, she being the subscriber of the alleged chit run by one Srinivas and at that time, she had issued cheque in question for the security purpose and same has been misused and at the instigation of the said Srinivas, the present complainant had filed present complaint with an intention to get wrong full gain, but to substantiate the same, she has not produced any documentary evidence, except oral testimony. Therefore, the alleged defence by the accused during the course of cross of PW-1 and during the course of her evidence is not justifiable.
15. If really, she was not at all borrowed the loan in 10 C.C.NO.23268 OF 2016 question from the complainant and he has not at all issued the Ex.P1 for discharge of the loan in question to the complainant and she being the subscriber of the alleged chit run by one Srinivas and at that time, she had issued cheque in question for the security purpose and same has been misused and at the instigation of the said Srinivas, the present complainant had filed present complaint with an intention to get wrong full gain, but to substantiate the same, she ought to have gave stop payment instruction to her banker, she ought to have take any legal action against the complainant or Srinivas, she ought to have challenged the cognizance taken by this Court, she ought to have gave reply notice, she ought to have produced any documents to show that, she being the subscriber of the alleged chit run by one Srinivas, she ought to have examine any of the alleged chit member. Therefore, non-performing the aforesaid legal proceedings that itself, it is very much fatal to the alleged defence set-up by the accused during the course of PW-1 and during the course of her evidence.
16. There is no dispute that, Ex.P1 cheque is belonging to her own bank account cheque and signature found on the Ex.P1(a) is her own signature. Therefore, it can be presumed that, the accused has issued the Ex.P1 to the complainant knowing fully well without having sufficient funds in her bank account with an intention to defeat the 11 C.C.NO.23268 OF 2016 claim of the complainant. Further, no ordinary prudent man will issue signed blank cheque to any other persons without having monetary transaction.
17. The drawer of the cheque have to take abundant precaution prior to issuance of cheque in question. Therefore, in the instant case also. It can be presumed that, no any ordinary prudent man will issue signed blank cheque to any other persons without having monetary transaction between themselves. Further, the complainant has proved her case by adducing cogent and corroborative evidence as per the section 138 of N.I.Act., on the other hand, the accused has failed to rebut her defence by adducing cogent and corroborative evidence. Hence, the probability of the preponderance is higher on the side of the complainant, rather than the accused.
18. Ordinarily offence under Section 138 of N.I.Act "mensrea" is not essential, under Section 138 of N.I.Act , is bring into operation rule of strict liability, whereas, "mensrea" is essential ingredients in criminal offences. Therefore, The complainant has proved her case against the accused, since offence under Section 138 of N.I.Act element of Mensrea has been excluded in general public interest to curb the instances of dishonouring of cheques and to lend the credibility to the commercial transaction. Therefore, in this case also the accused knowing fully she 12 C.C.NO.23268 OF 2016 was borrowed the loan in question from the complainant and for discharge the loan in question she has issued the Ex.P1 to the complainant. Since the present complaint is summary trial and quasi-criminal in nature, it is like recovery proceedings and punishment is fine or in default of it simple imprisonment.
19. Hence, in the light of the above observation, the complainant has successfully proved that, the accused has committed offence punishable under Section 138 of N.I. Act with these reasons, I am the opinion that, the complainant successfully established before the Court, the accused has issued Ex.P1 to the complainant for the legally recoverable debt. Therefore, I answer the point No.1 in the affirmative.
20. Point No.2 :- In view of my findings on Point No.1 in the affirmative, I proceed to pas the following...
ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
The accused shall pay a fine of
Rs.60,000/-. In default of payment of said
fine amount, the accused shall undergo simple imprisonment for One Month.
Further, ordered that, out of the said 13 C.C.NO.23268 OF 2016 fine amount of Rs.59,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and remaining an amount of Rs.1,000/- shall be remitted to the state as fine.
The bail bond and surety bond of the accused stands canceled.
Free copy issued to the accused.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified, corrected and then pronounced by me in the open Court on this the 19th day of December 2018).
(Rajkumar.S.Amminbhavi) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the complainant:
PW-1 Martha .K List of documents exhibited 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 Office Copy of the legal Notice
Ex.P.4 & 5 Two postal receipts
Ex.P.6 Postal acknowledgment
14 C.C.NO.23268 OF 2016
List of witnesses examined on behalf of the accused :
DW.1 Dhanalakshmi List of documents exhibited on behalf of the accused :
NIL XII Addl. Chief Metropolitan Magistrate, Bengaluru City.15 C.C.NO.23268 OF 2016
19.12.2018.
Complainant : AKS Accused : KS Judgment.
(Vide separate judgment pronounced in the open Court) ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
The accused shall pay a fine of Rs.60,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for One Month.
Further, ordered that, out of the said fine amount of Rs.59,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and remaining an amount of Rs.1,000/- shall be remitted to the state as fine.
16 C.C.NO.23268 OF 2016The bail bond and surety bond of the accused stands canceled.
Free copy issued to the accused.
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
17 C.C.NO.23268 OF 2016Heard Inference 18 C.C.NO.23268 OF 2016