Bangalore District Court
Smt.B.V.Radha vs Mrs.Madevi Selvam on 29 November, 2018
1 C.C.No.26501/2017 J
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This 29th day of November, 2018
Present:- Smt. Saraswathi.K.N, B.A.L.,LL.M.,
XVI Addl.CMM., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.
Case No. : C.C.No.26501/2017
Complainant : Smt.B.V.Radha,
W/o.Sri.Narasimha,
Aged about 48 years,
"Lakshmi Narasimha",
No.134, 71st Cross,
Near Kumaraswamy Layout
Police Station,1st Stage,
Kumaraswamy Layout,
Bengaluru - 560 078.
(Rep.by Sri.J.Ramakrishna, Adv.,)
- Vs -
Accused : Mrs.Madevi Selvam,
W/o.Sri.Selvam,
Aged about 40 years,
R/at: FF-3, Shivaganga
Sai Suchin Apartments,
5th Floor, 1st Main Road,
Maruthi Layout,
Vasanthapura,
Bengaluru - 560061.
(By Sri.R.V.Shivananda Reddy,
Adv.,)
2 C.C.No.26501/2017 J
Case instituted : 21.10.2017
Offence complained of : Sec.138 of the N.I. Act
Plea of Accused : Pleaded not guilty
Final Order : Accused is convicted
Date of order : 29.11.2018
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, as the Accused and she are residing in the same locality, they are known to each other for the past over two years. The Accused was in need of financial assistance for the purpose of the payment of fees for educating her son Ranjith. Therefore she had approached her during January 2017 and had requested her to lend her Rs.1 Lakh in order to meet her family necessities and also to meet her son's education needs.
3. That, the Accused had further requested her to transfer the amount to her son's account for the sake of convenience. Accordingly, she transferred Rs.50,000/= to her son Ranjith's account on 25.1.2017 and Rs.40,000/= on 27.1.2017. Thereafter the Accused again approached her and requested her to lend 3 C.C.No.26501/2017 J Rs.10,000/= on 28.1.2017 and accordingly, she advanced Rs.10,000/= to the Accused on 28.1.2017 by cash. In all, she has advanced Rs.1 Lakh to the Accused.
4. The Complainant has submitted that, towards the discharge of her liability, the Accused has issued post dated cheque during January 2017 i.e., the cheque bearing No.000040 dated:-15.8.2017 drawn on the Bank of Baroda, ISRO Layout, Bengaluru, for Rs.1 Lakh in her favour, with an assurance that, the same would be duly honoured on it's presentation on the due date.
5. The Complainant has submitted that, as per the advice of the Accused, when she presented the said cheque for encashment through her banker on 17.8.2017, the same came to be returned dishonoured as "Payment stopped by drawer". When the said fact was informed to the Accused, she requested her to re-present the said cheque on 29.8.2017. Accordingly, when she re- presented the said cheque, again it returned dishonoured with the same reason, as "Payment stopped by Drawer" vide Bank Endorsement dated; 30.8.2017.
6. The Complainant has submitted that, thereafter she got issued a legal notice to the Accused on 6.9.2017 through RPAD and Speed Post, calling upon her to pay 4 C.C.No.26501/2017 J the cheque amount to her within 15 days from the date of the receipt of the said legal notice. Despite the service of the same, the Accused has neither replied nor has she paid the cheque amount to her. Hence the present complaint.
7. The Complainant submits that, the dishonour of the cheque by the Accused has been malafide, intentional and deliberate. Feeling aggrieved by the conduct of the Accused, she has filed the present complaint praying that, she be summoned, tried and punished in accordance with Sec.138 of the Negotiable Instruments Act.
8. The Complainant has led her pre-summoning evidence by having filed her affidavit-in-lieu of her sworn-statement, in which, she has reiterated the complaint averments.
9. In support of her evidence, C.W.1 has produced and relied upon the documentary evidence as per Ex.C1 to C.10, which are as follows:-
Ex.C1 is the Original Cheque dated:-15.8.2017, in which the signature is identified by C.W.1 as that of the Accused as per Ex.C1(a), the Bank Memo as per Ex.C.2, the office copy of the Legal Notice as per Ex.C.3, the 5 C.C.No.26501/2017 J three Postal Receipts as per Ex.C.4 to C.6 respectively, the three Postal Acknowledgements as per Ex.C.7 to C.9 respectively and the statement of Accounts relating to the account of C.W.1 as per Ex.C.10.
10. Prima-facie case has been made out against the Accused and she has been summoned vide the order of the same date.
11. The Accused has appeared before the court and she has been enlarged on bail and the substance of the accusation has been read over to her, to which, she has pleaded not guilty and has stated that she has her defence to make.
12. As the Accused intended to put forth her defence and filed an application under Sec.145 (2) of the Cr.P.C, as per the decision of the Hon'ble Apex Court in the case of Indian Bank Association Vs., Union of India, reported in 2014 (5) SCC 590, the case came to be posted for the cross-examination of the Complainant.
13. It is seen that, during the cross-examination P.W.1, the computer generated stop payment advice came to be marked as Ex.N.1.
6 C.C.No.26501/2017 J14. PW.1 has been cross examined by the learned Defence Counsel.
15. The statement of the Accused as required under Sec. 313 of the Cr.P.C. has been recorded. She has denied the incriminating evidence found against her and she has filed her statement of defence u/Sec. 313(5) of the Cr.P.C.
16. The defence of the Accused in her statement of defence is that, she has not borrowed any loan from the Complainant and that she has not issued the cheque in dispute to her towards the discharge of any legally payable debt. That there was a dispute between the Complainant and her relating to two wheeler and that the Complainant had collected the cheque in question as a signed blank cheque and certain documents from her in relation to the said transaction and that though the Complainant had assured to return her cheque and other documents to her after the settlement of the dispute, she failed to do so. For the same reason, she issued stop payment instructions to her banker pertaining to the subject cheque.
17. That, as the Complainant had promised to return the cheque in question to her, she did not issue 7 C.C.No.26501/2017 J any reply notice to her. The Complainant has cheated her by misusing the cheque in question by presenting the same in the bank and as such, she is not liable to pay any amount to the Complainant. Accordingly, she has prayed for her acquittal.
18. I have heard the arguments of the learned counsels representing the Complainant as well as the Accused and I have perused the record carefully.
19 Sec.138 of the Negotiable Instruments Act has been enacted to lend credibility to the financial transactions.
The main ingredients of the offence under Sec.138 of the Negotiable Instruments Act are:-
(i) Drawing up of a cheque by the Accused towards payment of an amount of money, for the discharge, in whole or in part, of any debt or any other liability;
(ii) Return of the cheque by the Bank as unpaid;
(iii) The drawer of the cheque fails to make the payment of the said amount of money within 15 days of the receipt of the notice under the proviso
(b) to Sec.138.8 C.C.No.26501/2017 J
The Explanation appended to the Section provides that, the "debt or other liability" for the purpose of this Section means a legally enforceable debt or other liability.
20. Apart from this, Sec.139 of the Negotiable Instruments Act lays down a presumption in favour of the holder of cheque in the following terms:-
"It shall be presumed, unless the contrary is proved, that:-
The holder of a cheque received the cheque, of the nature referred to in Sec.138, for the discharge, in whole or in part, of any debt or other liability".
21. Also, Sec.118 of the Negotiable Instruments Act states, "Until the contrary is proved, the following presumptions shall be made:-
(a) That every Negotiable Instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration."
.
9 C.C.No.26501/2017 J22. Thus, the Act clearly lays down presumptions in favour of the Complainant with regard to the issuance of the cheque by the Accused towards the discharge of his liability in favour of the Complainant.
23. Under the scheme of the Act, the onus is upon the Accused to rebut the presumptions in favour of the Complainant by raising a probable defence.
24. It is a well settled position of law that the defence of the Accused, if in the nature of a mere denial of the case of the Complainant will not be sufficient to hold it as a probable defence. The bare denial of the passing of consideration apparently does not appear to be any defence. Something which is probable must be brought on record for getting the benefit of shifting the onus of proof to the Complainant.
25. It is also a well settled position of law that, once the cheque is proved to be relating to the Account of the Accused and he accepts and admits the signature on the said cheque, then the initial presumption as contemplated under Sec. 139 of the N.I.Act has to be raised by the courts in favour of the Complainant. The presumption referred to in Sec.139 of the N.I.Act is a mandatory presumption and not a general presumption, 10 C.C.No.26501/2017 J but the Accused is entitled to rebut the said presumption. What is required to be established by the Accused in order to rebut the presumption is different from each case under given circumstance. But the fact remains that a mere plausible explanation is not expected from the Accused and it must be more than a plausible explanation by way of rebuttal evidence. The defence raised by the Accused by way of rebuttal evidence must be probable and capable of being accepted by the court.
26. No doubt the initial mandatory statutory presumptions under Sec.118 and 139 of the N.I.Act are in favour of the Complainant. However they are rebuttable presumptions and the Accused is expected to rebut the presumptions by raising a probable defence.
27. Such being the legal position, it would be pertinent to refer to the defences raised by the Accused to rebut the presumptions in favour of the Complainant in this case.
28. Admittedly, there is no dispute with regard to the acquaintance between the parties, as well as with regard to the fact that, the cheque in dispute belongs to the Accused with her signature on it. Likewise, there is 11 C.C.No.26501/2017 J no dispute with regard to the fact that, the Accused has issued the subject cheque in favour of the Complainant. However, the Accused has seriously denied the alleged loan transaction of Rs.1 Lakh with the Complainant and she has also denied that, she has issued the cheque in dispute to the Complainant towards the repayment of her alleged loan of Rs.1 Lakh from her.
29. No doubt, when the Accused admits the cheque and her signature on it and it's issuance in favour of the Complainant, the presumptions envisaged u/Sec. 118 and 139 of the N.I.Act are to be drawn in favour of the Complainant.
30. However, if the Accused is able to place on record some probable defence, which would create a doubt in the mind of this court about the case of the Complainant, then the former would be entitled to such benefit of doubt. Moreover, when the Accused denies the existence of the alleged loan transaction as claimed by the Complainant, then the onus of proving the transaction in question is upon the Complainant. For this purpose, the Complainant is required to prove her case beyond reasonable doubt.
12 C.C.No.26501/2017 J31. In this regard, it is interesting to note that, as per the complaint averments, the Complainant is said to have lent Rs. 90,000/= to the Accused, by way of having transferred the same to the account of the son of the Accused by name Ranjith on 25.1.2017 and 27.1.2017 and the balance of Rs.10,000/= by way of cash directly to the Accused.
32. To fortify this contention, the Complainant has produced her Bank Statement as per Ex.C.10, in which, she has relied upon the relevant entries dated:-
25.1.2017 and 27.1.2017, as per which, a sum of Rs.50,000/= and a sum of Rs.40,000/= is shown to have been transferred to the account bearing No. "0020364542463" in the name of "Ranjith".
33. It is pertinent to note that, the defence of the Accused is that, though the name of "Ranjith" is found in the entry dated:-25.1.2017 with the account No.0020364542463, there is no mention of the said name of "Ranjith" in the entry dated:-27.1.2017, though the aforesaid account number finds place in the said entry.
34. It is interesting to note that, the Complainant has been cross-examined with regard to the absence of 13 C.C.No.26501/2017 J the name of "Ranjith" in the entry dated: 27.1.2017 in Ex.C10.
35. No doubt, in this regard, the Complainant has admitted the suggestion that, there is no name "Ranjith" forthcoming with regard to the transaction of Rs.40,000/= from her account on 27.1.2017 in Ex.C.10. However, the Complainant has voluntarily deposed that, the said amount has also been transferred to the account of "Ranjith", but she has admitted that, the said "Ranjith" is not an Accused in this case.
36. Moreover, the Complainant has also admitted the suggestion that, the amount that she claims to have lent as a hand loan as per Ex.C.10 to the Accused, has been transferred to the account of "Ranjith" and that the said Ranjith is not an Accused in this case.
37. However, it is interesting to note that, even during the case of his arguments, the learned Defence Counsel has argued that, when there is no specific mention of the name "Ranjith", though there is repetition of the same account number in both the entries dated:-
25.1.2017 and 27.1.2017, it is not necessary that, the said account number which appears in the entry dated:
27.1.2017 must be that of Ranjith, whose number is 14 C.C.No.26501/2017 J found vide entry dated: 25.1.2017. He has also argued that merely because the same account number finds place in two entries in Ex.C10, it is not necessary that the said account number found vide entry dated 27.1.2017 must be of the same bank as that found in the entry dated 25.1.2017 and it is possible that it could be the account of a different person of a different bank.
38. However, the argument of the learned Defence Counsel to the effect that, the entry dated:-25.1.2017 relates to the transaction of Rs.50,000/= from the account of the Complainant to the account of Ranjith, while the entry dated: 27.1.2017, through which Rs.40,000/= is transferred to the same account number does not relate to the account of Ranjith cannot be accepted by this court.
39. Moreover it is not the defence of the Accused that, Ranjith is not her son and that the account bearing No.0020364542463 is not the account relating to her son Ranjith.
40. Even otherwise, if the defence of the Accused was that the entry dated:- 27.1.2017 showing the transfer of sum of Rs.40,000/= from the account of the Complainant to the account of her son Ranjith did not 15 C.C.No.26501/2017 J relate to the transaction of the Complainant with her, then nothing prevented the Accused from producing the Bank statement or the Bank Pass book of her son Ranjith, which could have clearly probabalized her defence. However for the reasons best known to her, the Accused has seriously omitted by withholding the best piece of documentary evidence, which admittedly is in her custody. This would clearly result in drawing an adverse inference against the Accused.
41. Moreover, if the Accused had produced either the Bank Pass book or the Bank Statement relating to the account of her son Ranjith vide account No.0020364542463, it could have clearly proved that, the amount of Rs.40,000/= was never transferred to the said account from the account of the Complainant as claimed by the latter in the present case. However the non- production of such documentary proof by the Accused clearly leads to a serious doubt about her defence version.
42. It is interesting to note that, the defence of the Accused with regard to her cheque, being in the custody of the Complainant is that, it was collected by the latter from her, in respect of two a wheeler transaction between them which existed in the year 2017. However, it is 16 C.C.No.26501/2017 J pertinent to note that, there is no explanation offered by the Accused with regard to the purpose for which the amount of Rs.50,000/= is admittedly transferred by the Complainant from her account to that of the son's account of the former, though she disputes the transaction of Rs.40,000/= vide entry dated 27.1.2017 as shown in Ex.C10.
43. On the contrary, the Complainant has offered an explanation in her cross-examination that, after the transaction between them with regard to the two wheeler got concluded, the Accused has issued the cheque in dispute to her. No doubt, at one place in her cross- examination, the Complainant has contradicted by claiming that, the Accused has issued the cheque in dispute to her in the month of August 2017. However, such minor contradictions should not be seriously considered by this court and the entire evidence placed on record by the parties must be assessed by this court.
44. It is interesting to note that, the Accused also raised the defence that, there were differences between the Complainant and her in respect of the two wheeler transaction between them. However, when the Complainant has specifically denied such defence 17 C.C.No.26501/2017 J version, the Accused has not led any proof in order to substantiate the same.
45. It is interesting to note that, though the Complainant has also been cross-examined by suggesting to her that, she has not produced any documentary proof to show the source of funds with her, so as to have lent Rs.1 Lakh to the Accused, the non- production of such documentary proof is not fatal to her case, since the transaction as claimed by her is proved through her Bank statement at Ex.C.10.
46. Moreover, when the Accused has specifically taken up the defence that, the cheque in dispute was collected from her as a signed blank cheque by the Complainant in relation to the two wheeler transaction, the onus of proving the said defence version was upon the Accused only.
47. However, it is interesting to note that, the Accused has not whispered anything about the details of such two wheeler transaction and also the purpose, for which, her signed blank cheque was allegedly collected from her by the Complainant in relation such two wheeler transaction.
18 C.C.No.26501/2017 J48. Moreover, during the course of his arguments, the learned counsel for the Complainant has produced the documents viz., the sale receipt pertaining to the two wheeler i.e. Yamaha Ray-Z, in which, the sale consideration amount is shown as Rs.26,000/= and the said transaction is dated:-24.4.2017. In such circumstance, when the transaction in respect of the two wheeler between the parties was only to the tune of Rs.26,000/=, then there was no necessity for the Accused to issue her allegedly signed blank cheque to the Complainant towards the said transaction.
49. Moreover, though the Accused has claimed that, her signed blank cheque was collected by the Complainant from her, the former (Accused) herself has produced the Computer Generated Stop Payment Advice as per Ex.N.1, which goes to show that, the Accused has given stop payment instruction pertaining to the cheque in dispute on13.8.2017. Further the said document goes to show that, the details of the cheque described in the said documents is that the cheque is drawn in the name of the Complainant for a sum of Rs.10 Lakhs. That means, as on 13.8.2017, the Accused was aware of the fact that, the cheque in dispute was for the value of Rs.1 Lakh. However, if According to the Accused her signed blank cheque was allegedly given by her to the 19 C.C.No.26501/2017 J Complainant, then as on 13.8.2018, there was no possibility for her to know that, the said cheque was going to be presented by the Complainant for a sum of Rs.1 Lakh, when admittedly the cheque in dispute is dated: 15.8.2017, while it is returned dishonored for the reason "Payment stopped by drawer" on 13.8.2017. Therefore merely because the reason for the dishonour of the cheque in dispute is "Payment stopped by drawer", it does not lead to an inference that, the Accused has probabalised her defence version.
50. Moreover, it is pertinent to note that, the Accused has also denied that, the cheque in dispute bears her signature. In such circumstance, the onus of proving the plea of forgery is upon the Accused. However, as could be seen from the record, except having taken such bald defence, the Accused has not made any attempt in order to prove the plea of the alleged forgery of her signature on the cheque in question.
51. Therefore if the defence of the Accused that, her signed blank cheque has been misused by the Complainant was really true, then the latter (Complainant) had every opportunity to fill up the cheque for a higher amount, than the one claimed by her in the present case. As such viewed from any angle, the 20 C.C.No.26501/2017 J defence of the Accused cannot be considered to be a probable one.
52. Lastly, it is interesting to note that, the learned Defence Counsel has emphasized in his argument about the date found on the cheque in dispute by arguing that, the date of the cheque itself is sufficient to lead to an inference that, the case of the Complainant is highly suspicious.
53. However, in the light of such argument, when the stop payment letter at Ex.N.1 is carefully observed by this court, it goes show that, though there is a reference to the cheque number, payee name and the cheque amount in the said document, there is no mention of the date of the cheque in the said document. Therefore with these observations it cannot be inferred that, the date on the cheque might have been fill up by the Complainant only, while presenting the cheque in dispute. However, solely on the said ground, the case of the Complainant cannot be doubted by this court, since as per Sec. 20 of the N.I.Act, the conduct of the Complainant, even if she has filled up the date on the subject cheque, could be saved and as such, there can be no fault found in such conduct of the Complainant in view of Sec.20 of the N.I.Act.
21 C.C.No.26501/2017 J54. Therefore, the appreciation of the evidence on record goes to show that, the defence of the Accused is one of bare denial by taking the help of her two wheeler transaction with Complainant. Therefore it could be seen that, though the Accused has tried to escape from her liability in respect of the subject cheque, she has failed to probabalize her defence version and she has failed to rebut the presumptions available in favor of the Complainant under Sec.118 and 139 of the N.I.Act. Accordingly, I proceed to pass the following:-
ORDER By exercising the power-conferred u/s 255(2) of Cr.P.C. the Accused is hereby convicted of the offence punishable u/s 138 of the Negotiable Instruments Act.
She is sentenced to pay a fine of Rs.1,15,000/= (Rupees One Lakh and Fifteen Thousand Only).
If the fine amount is so realized, Rs.1,10,000/= (Rupees One Lakh and Ten Thousand Only) is ordered to be paid to the Complainant as Compensation and the balance of Rs.5,000/= (Rupees Five Thousand only) is ordered to be adjusted towards cost to the State Exchequer.
.
22 C.C.No.26501/2017 JIn default of payment of such compensation, the Accused shall undergo Simple Imprisonment for 3 (Three) Months.
Her bail bond stands discharged.
Issue free copy of the Judgment to the Accused forthwith.
(Dictated to the Stenographer, transcript thereof is computerized by her, print out taken by her, verified, corrected and then pronounced by me in the open Court on this the 29th day of November, 2018).
(SARASWATHI.K.N), XVI ACMM., Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
C.W.1 : Smt.B.V.Radha;
2. List of documents exhibited on behalf of the
Complainant:-
Ex.C.1 : Original Cheque;
Ex.C.1(a) : Signature of the Accused;
Ex.C.2 : Bank Memo;
Ex.C.3 : Office Copy of Legal Notice;
Ex.C.4 to C.6 : Postal Receipts;
Ex.C.7 to C.9 : Postal Acknowledgements
Ex.C.10 : Statement of Accounts of PW.1.
Ex.N.1 : Computer Generated stop payment
advice.
(Marked only for identification purpose).
23 C.C.No.26501/2017 J3. List of witness/s examined on behalf of the Accused:-
- Nil -
4. List of documents exhibited on behalf of the Accused:-
- Nil -
(SARASWATHI.K.N), XVI ACMM, Bengaluru City.24 C.C.No.26501/2017 J
29.11.2018 Judgment pronounced in the open court vide separate order ORDER By exercising the power-
conferred u/s 255(2) of Cr.P.C. the Accused is hereby convicted of the offence punishable u/s 138 of the Negotiable Instruments Act.
She is sentenced to pay a fine of Rs.1,15,000/= (Rupees One Lakh and Fifteen Thousand Only).
If the fine amount is so realized, Rs.1,10,000/= (Rupees One Lakh and Ten Thousand Only) is ordered to be paid to the Complainant as Compensation and the balance of Rs.5,000/= (Rupees Five Thousand only) is ordered to be adjusted towards cost to the State Exchequer.
In default of payment of such compensation, the Accused shall undergo Simple Imprisonment for 3 (Three) Months.
Her bail bond stands
discharged.
Issue free copy of the Judgment
to the Accused forthwith.
XVI ACMM, B'luru.
25 C.C.No.26501/2017 J