Bangalore District Court
Sri. S.G.Lakshmi vs Smt. Shanthamma on 4 November, 2020
1
C.C.No.24915 /2015
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 4th day of November, 2020
Present: Sri.S.B.HANDRAL, B.Sc., L.L.B(SPL).,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.24915/2015
Complainant : Sri. S.G.Lakshmi,
D/o. Late S.N.Govind Shetty,
R/at No.11/59, V.P. Road,
Near Cauvery Convent School,
Madivala,
Bengaluru 560 068.
(By Sri. K.Meera Keshava Murthy,
Adv.,)
Vs
Accused : Smt. Shanthamma,
W/o. Late Jagadeesh,
No.357,
Opposite to "Naganatheshwara
Temple",
Hosa Beedi, Begur Village,
Begur Hobli,
Bengaluru South Taluk.
(By Sri.B.K.Narendra Babu,
Adv .,)
2
C.C.No.24915 /2015
Case instituted : 12.8.2015
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is convicted
Date of order : 4.11.2020
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, she and the accused are close friends since long time and both were helping each other in all aspects. On 18.1.2012 the accused contacted her and narrated her difficulties to her and requested to help her by giving some financial assistance to tune of Rs.3 Lakhs for her family, business purpose and the accused assured her that she will pay interest at 4% p.m. to the said loan amount and the accused further sought one year period for repay the said loan 3 C.C.No.24915 /2015 amount and assured her that she will to pay loan amount along with entire interest amount accured thereon after stipulated time one year and with such understanding the accused borrowed hand loan of Rs.3 Lakhs on 18.1.2012 from her and her sister ie., S.G.Usharani, for which the accused has executed a hand loan agreement on that day in favour of herself and her sister S.G.Usharani. The complainant further states that, after completion of the said period of one year she approached the accused and requested her to repay the loan amount along with interest, instead of repaying the said loan amount, the accused again requested her for another two years time to repay the said loan amount and the accused also undertakes to repay the said loan amount along with interest as agreed in the said agreement after completion of the said extended period. The complainant further states that, by beliving the words of the accused, she waited upto 18.1.2015 and again she approached her on 18.1.2015 and requested her to repay the loan amount along with interest accured thereon, on 4 C.C.No.24915 /2015 18.1.2015 towards the repayment of the said loan amount along with interest accrued, the accused has issued a post dated cheque bearing No. 357219 dated: 8.6.2015, for a sum of Rs.6,60,000/, drawn on Citi bank, N.A. Bengaluru and as per the request of the accused on 15.6.2015 she presented the said cheque for encashment through her banker ie., Canara Bank, DVG Road branch, Bengaluru, the same came to be returned dishonoured as "Account Closed" vide endorsement dated: 16.6.2015, immediately after the dishonour of the said cheque, she tried to contact the accused personally, but all the efforts in that regard went in vain, thereafter she got issued a legal notice to the accused on 13.7.2015 through RPAD the same was duly served on the accused on 15.7.2015, inspite of that, the accused neither replied to the said notice nor she had paid the amount due and payable to her. Hence she has filed this present complainant against the Accused for the offence punishable U/s.138 of Negotiable Instruments Act.
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3. Before issuing process against the accused, the Complainant has filed her affidavitinlieu of her sworn statement, in which, she has reiterated the averments of the complaint along with original documents.
4. Primafacie case has been made out against the accused and summons was issued against the accused in turn has appeared before the court and got enlarged on bail and the substance of the accusation has been read over to her, to which she pleaded not guilty and claims to be tried.
5. The complainant herself examined as PW.1 and she has filed her affidavit in lieu of her chief examination, in which she has reiterated the averments made in the complaint. In support of his evidence, P.W.1 has relied upon the documentary evidence as per Ex.P.1 to P.11 i.e, Original Cheque dated: 8.6.2015 is as per Ex.P.1, the signature on the said cheque identified by P.W.1 as that of the accused as per Ex.P.1(a), the Bank memo as per 6 C.C.No.24915 /2015 Ex.P.2, the office copy of Legal Notice as per Ex.P.3, postal receipt as per Ex.P.4, postal acknowledgement as per Ex.P.5, Hand loan agreement as per Ex.P.6, signature of the accused and the complainant on the said agreement as per Ex.P.6(a) and 6(b) respectively ,three deposit challans as per Ex.P.7 to P.9 respectively, consideration receipt as per Ex.P.10, signature of the accused as per Ex.P.10(a), Bank Statement of account of accused as per Ex.P.11.
6. As per the direction of the Hon'ble Apex Court in the decision of the Indian Bank Association Vs., Union of India, reported in 2014 (5) SCC 590, after recording the plea of the Accused, as she intended to set out her defence, the case was posted for the Crossexamination of complainant. The accused has crossexamined the complainant and complainant has closed her side.
7. Thereafter, the statement of the accused as required under Sec.313 of the Cr.P.C. has been recorded. She has denied the incriminating evidence 7 C.C.No.24915 /2015 appearing against her and has chosen to lead her rebuttal evidence subsequently the Accused has examined as DW.1 and no documents have been produced by the accused.
8. Heard by learned counsel for the complainant and the Accused and perused the materials on record and the decisions relied upon by the learned counsel for the complainant i.e. 2017 (4) KCCR 2933 in case of N. Manjegowda Vs. N.V. Prakash and the decisions relied upon by the learned counsel for the Accused i.e. 1) Criminal Appeal No.636/2019 in case of Basalingappa Vs. Mudibasappa, 2) (2008) 4 SCC 54 in case of Krishna Janardhan Bhat Vs. Dattatraya G. Hegde; 3) ILR 2009 KAR 4629 incase of Shiva Murthy Vs. Amrutharaj ; 4) ILR 2009 KAR 172 incase of Sri.A.Viswanatha Pai Vs. Sri Vivekananda S.Bhat; 5) 2015 AIR SCW 64 in case of K.Subramani Vs. K.Damodara Naidu; 6) 2014(1) DCR 539 in case of Brajgopal Singh 8 C.C.No.24915 /2015 Swarnar Vs. Girish Raise; 7) (2014) 2 SCC 236 in case of John K. Abraham Vs. Simon C Abraham and another; 8) (2009) 14 SCC 398 incase of M.D.Thomas Vs.P.S.Jaleel and another.
9. On the basis of complaint, evidence of complainant and documents the following points that are arise for consideration are:
1. Whether the complainant proves that the accused has issued cheque bearing No. 357219 dated:
8.6.2015 for Rs. 6,60,000/ drawn on Citi Bank, N.A Bengaluru to discharge legally recoverable debt to the complainant and when the complainant has presented cheque for encashment through her banker but the said cheque has been dishonoured for the reasons "Account closed" on 16.6.2015 and the complainant issued legal notice to the accused on 13.7.2015 and inspite of it the accused has not paid the cheque amount within prescribed period there by the accused has committed an offence U/s.138 of the Negotiable instruments Act?9
C.C.No.24915 /2015
2. What Order?
10. The above points are answered as under:
Point No.1: In the Affirmative Point No.2: As per final order for the following:
..
REASONS
11. Point No.1: Before appreciation of the facts and oral and documentary evidence of the present case, it is relevant to mention that under criminal jurisprudence prosecution is required to establish guilt of the Accused beyond all reasonable doubts however, a proceedings U/s.138 of N.I.Act is quasi criminal in nature. In these proceedings proof beyond all reasonable doubt is subject to presumptions as envisaged U/s.118, 139 and 136 of N.I.Act. An essential ingredient of Sec. 138 of N.I.Act is that, whether a person issues cheque to be encashed and the cheque so issued is towards payment of debt or liability and if it is returned as unpaid for want of funds, then the person issuing 10 C.C.No.24915 /2015 such cheque shall be deemed to have been committed an offence. The offence U/s.138 of N.I. Act presupposes conditions for prosecution of an offence which are as under:
1. Existence of legally enforceable debt or liability and issuance of cheque in discharge of said debt or liability;
2. Cheque shall be presented for payment within specified time i.e., from the date of issue before expiry of its validity.
3. The holder shall issue a notice demanding payment in writing to the drawer within one month from the date of receipt of information of the bounced cheque and
4. The drawer inspite of demand notice fails to make payment within 15 days from the date of receipt of such notice.
If the above said conditions are satisfied by holder in due course gets cause action to launch prosecution against the drawer in respect of bounced 11 C.C.No.24915 /2015 cheque and as per Sec.142(b) of the N.I. Act, the complaint has to be filed within one month from the date on which cause of action arise to file complaint.
12. It is also one of the essential ingredient of Sec. 138 of N.I.Act that, a cheque in question must have been issued towards legally recoverable debt or liability. Sec. 118 and 139 of N.I.Act envisages certain presumptions i.e., U/s.118 presumption shall be raised regarding 'consideration' 'date' 'transfer' 'endorsement' and holder in course of Negotiable Instrument. Even Sec.139 of the Act are rebuttable presumptions shall be raised that, the cheque in question was issued regarding discharge of a legally recoverable or enforceable debt and these presumptions are mandatory presumptions that are required to be raised in cases of negotiable instrument, but the said presumptions are not conclusive and are rebuttable one, this proportion of law has been laid down by the Hon'ble Apex Court of India and Hon'ble High Court of Karnataka in catena of decisions.
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13. In the present case the complainant in her complaint and affidavit evidence has specifically contended that, she and the accused are close friends since long time and on 18.1.2012 the accused contacted her and narrated her difficulties to her and requested financial help and thereafter she has lent a sum of Rs.3 Lakhs to the accused and in turn the accused assured her that, to pay interest at 4% p.m. to the said loan amount and also agreed to repay the said amount within one year and entire interest amount along with loan amount. The complainant further contended that, after the stipulated time of one year the accused again borrowed a sum of Rs.3 Lakhs on 18.1.2012 from her and her sister ie., S.G.Usharani, by executing hand loan agreement on that day in their favour. Thereafter after lapse of one year she approached the accused and requested her to repay the loan amount along with interest, at that time the accused requested another two years to repay the said loan amount and interest as agreed by her in the agreement accordingly the time is extended.
13C.C.No.24915 /2015 Thereafter she had waited upto 18.1.2015 and approached the accused on 18.1.2015 and requested her to repay the loan amount along with interest accured thereon, on that day the accused had issued a post dated cheque bearing No. 357219 dated:
8.6.2015, for a sum of Rs.6,60,000/, drawn on Citi bank, N.A. Bengaluru in her favour by assuring to present the said cheque and same will be honoured and as per request of the accused on 15.6.2015 she has presented the said cheque for encashment through his banker ie., Canara Bank, DVG Road branch, Bengaluru, the same came to be returned dishonoured as "Account Closed" vide endorsement dated: 16.6.2015, immediately after the dishonour of the said cheque, she tried to contact the accused personally, but all the efforts in that regard went in vain, thereafter she got issued a legal notice to the accused on 13.7.2015 through RPAD the same was duly served on the accused on 15.7.2015, inspite of that, the accused neither replied to the said notice nor she had paid the amount due and payable to her.14
C.C.No.24915 /2015
14. In support of the oral evidence of the complainant, he produced and marked the documents as per Ex.P.1 to P.11 i.e. Original Cheque dated: 8.6.2015 is as per Ex.P.1, the signature on the said cheque identified by P.W.1 as that of the accused as per Ex.P.1(a), the Bank memo as per Ex.P.2, the office copy of Legal Notice as per Ex.P.3, postal receipt as per Ex.P.4, postal acknowledgement as per Ex.P.5, Hand loan agreement as per Ex.P.6, signature of the accused and the complainant on the said agreement as per Ex.P.6(a) and 6(b) respectively, three deposit challans as per Ex.P.7 to P.9 respectively, consideration receipt as per Ex.P.10, signature found on the said document as that of the accused as per Ex.P.10(a), Bank Statement of account of the accused as per Ex.P.11.
15. In the present case, the accused has disputed her acquitance with the complainant and also disputed the cheque in question i.e Ex.P.1 as it was not issued to the complainant and signature found at Ex.P.1(a) is not that of her signature. The 15 C.C.No.24915 /2015 accused has also disputed service of legal notice upon her which was issued by the complainant. The accused also disputed the financial capacity of the complainant and loan transaction in question, hence the overall defence of the accused is one, denial of the entire claim of the complainant in this case. Therefore the initial burden is on the complainant to prove the loan transaction in question and issuance of the cheque towards discharge of the loan amount and service of legal notice upon the accused , in this back ground it is to be examined the oral and documentary evidence adduced by both complainant and accused.
16. The accused though in her defence denied the acquittance of the complainant as she do not know the complainant but the accused in her examinationinchief and cross examination has clearly admitted that, she know the younger brother of the complainant by name Subramani since 10 years and the said Subramani and complainant are arranging package tour for public and also running 16 C.C.No.24915 /2015 travells in the name of Sapthagiri Travels and she also used to go the tours and take the other peoples also for package tour conducted by the complainant and her brother Surbamani, hence the very admissions of the accused sufficient to hold that, complainant and accused are known to each other as stated by the complainant in her complaint and evidence, in such circumstances the defence of the accused that, she do not know the complainant cannot be acceptable one.
17. The accused also disputed the issuance of cheque in question in favour of the complainant and signature found at Ex..P1(a) as is not that of her signature. The complainant in order to prove the said fact has produced the Original cheque in question I.e Ex.P.1 and also identified the signature of the accused is at Ex.P.1(a). The accused during the course of her cross examination has clearly admitted that, the cheque in question belongs to her account, hence the said categorical admissions goes to show that, the cheque in question i.e. Ex.P.1 pertains to 17 C.C.No.24915 /2015 the account of the accused, as the admitted fact need not be proved. It is also relevant here to mention that, the accused denied her signature found at Ex.P.1(a) as not of her signature but the accused has not disputed the fact of dishonour of the cheque in question ie., Ex.P.1 for the reason of Account closed as per Ex.P.2 endorsement given by her banker. It is also seen from the Ex.P.1 the cheque in question i.e. 8.6.2015 presented by the complainant on 16.6.2015 and same has been returned dishonoured for the reason of Account closed as per Ex.P.2, therefore the cheque in question has been presented within the prescribed time and same has been dishonoured for the reason of Account closed, therefore the complainant has proved that, the cheque in question belongs to the account of the accused and same has been dishonoured as account closed.
18. The accused in her defence evidence strongly disputed her signature i.e. Ex.P.1(a) as is not of her signature and she has not signed on the 18 C.C.No.24915 /2015 cheque in question and has not issued the cheque to the complainant towards discharge of recoverable debt or liability in question. In order to prove the defence of the Accused that, the signature appearing on the Ex.P.1 cheque is not of her signature, except the oral denial Accused has not produced any documentary proof therefore in the absence of documentary proof or materials placed by the Accused to show that, Ex.P.1(a) is not of her signature, only on the basis of self serving statement it cannot be held that, the signature found at Ex.P.1(a) is not the signature of the Accused. It is relevant here to refer the decisions of Hon'ble Apex Court of India reported in 1999(3) SCC 376 in the case of "L.C.Goyal Vs. Suresh Joshi(Mrs) and Ors"
wherein Hon'ble Apex Court held that, "drawer denied his signature on the cheque and pleaded that, he could not be held responsible unless opinion of hand writing expert was obtained, but when cheque bounced for want of funds, the plea of forged signature cannot be accepted". In 19 C.C.No.24915 /2015 another decision reported in ILR 2006 KAR 2958 in a case of "Rajendraprasad Vs. M.Shivaraj"
wherein the Hon'ble High Court held that "B. Negotiable Instrument Act, 1881 - Sections 138, 139 - signature of the accused on cheque denied
- No discrepancy of the signature with the specimen signature. In the banks intimation Whether mere denial of the signature of the accused on the cheque sufficient for acquittal competency of persons to speak about the signature of the accused HELD - The banker of the accused is more competent person to say whether it is the signature of the accused or not with reference to the specimen signature. In the banks intimation, the discrepancy of the signature with the specimen signature is not the ground for dishonour. In the instant case, the banker does not mention that, the signature is discrepancy of the signature with the specimen signature is not the ground for dishonour. In the 20 C.C.No.24915 /2015 instant case, the banker does not mention that, the signature is discrepant and does not tally with the specimen signature. Therefore, the self serving denial of signature in the cheque cannot be a good evidence to come to the conclusion that, the signature on the cheque is not that of the accused. The bankers no objection for the signature in the cheque is one of the strongest circumstances to corroborate that, the signature on the cheque is that of the accused. The possession of the lose cheque with the complainant suggests an inference of endorsement and delivery of inchoate instrument which impliedly admit the issuance of cheque in favour of the complainant. Hence on careful reading of principles of law laid down by the Hon'ble Apex Court and Hon'ble High court of Karnataka in the above referred decisions, it is clear that, when the accused disputed his/her signature on the cheque, then the court can consider the endorsement issued by the banker on the Memo and if in the bank's 21 C.C.No.24915 /2015 intimation, the discrepancy of the signature with the specimen signature is not the ground for dishonour, then the signature appearing on the cheque is one of the strongest circumstances to corroborate that, the signature on the cheque is that of accused and it is also held that, the possession of the cheque with complainant suggest an inference of endorsement and delivery of inchoate instrument which impliedly admits the issuance of cheque in favour of the complainant.
19. In the present case also though the accused has denied her signature and issuance of the cheque infavour of the complainant, but nothing has been produced by her to show how the cheque in question come in possession of the complainant and also bank's intimation which is at Ex.P.2 discloses the fact that, the cheque in question dishonoured for the reason of "Account closed" but the cheque in question was not dishonoured with an endorsement of "signature differs", therefore in view of the principles of law laid down by the Hon'ble Apex 22 C.C.No.24915 /2015 Court and High Court of Karnataka in the above referred decisions, it can be safely held that, the denial of signature by the accused is only self serving denial of her signature, that cannot be a good evidence to come to a conclusion that, the signature found at Ex.P1(a) is not that of the accused. In view of the principles of law laid down in the decisions, even it is not necessary for the complainant to examine the bank manager as a witness to prove the fact that, the signature appearing on the cheque is that of the accused, since the accused in her cross examination has clearly admitted that, the cheque issued infvour of the complainant on its presentation to the bank returned as "Account Closed" and during the course of cross examination of the complainant/PW.1 the accused has not denied the endorsement issued by banker as per Ex.P.2. Therefore the complainant has discharged her initial burden that, by proving the fact that, the signature appearing at Ex.P.1(a) is that of the accused. It is also relevant here to mention that, the accused in her defence except denial of the claim of her signature 23 C.C.No.24915 /2015 has not stated how the possession of the disputed cheque entered into the hands of complainant. If the accused has failed to explain the circumstances, under which the Ex.P.1 i.e., disputed cheque came in possession of the complainant, in such circumstances failure to do so also entitles in drawing adverse inference against the accused. This preposition of law finds support from the decisions of Hon'ble High Court of Karnataka reported in 2010(1) KCCR 176 in the case of "Siddappa Vs. Manjappa". In another decision of Hon'ble Apex court of India decided in Crl.A.No.664 of 2012 dated: 19.9.2019 in the case of "M.Abbas Haji Vs. T.M.Chennakeshava" held that, " the Accused has to explain how the cheque entered into the hands of complainant". Hence in the present case also the Accused has failed to explain the circumstanes how the cheque in question was entered into the hands of complainant. Therefore the defence taken by the accused that, the signature found at Ex.P.1(a) is not that of her signature cannot 24 C.C.No.24915 /2015 be acceptable one, on the contrary the complainant has successfully proved that, the signature found at Ex.P.1(a) is that of the accused.
20. It is also relevant here to mention that, the complainant apart from the production of Ex.P.1 cheque in question has also produced one document titled as "HAND LOAN AGREEMENT" Dated:
18.1.2012 said to have been executed by the accused in her and her sister by name Smt.S.G. Usharani in respect of receipt of a sum of Rs.3 Lakhs from them which is also marked as Ex.P.6 and the signature of the accused on Ex.P.6 identified by the complainant which is at Ex.P.6(a). It is interesting to mention here that, the accused i.e. DW.1 at page No.2 of her cross examination has clearly admitted that, the signature found at Ex.P.6(a) is her signature but has denied the execution of the hand loan agreement i.e Ex.P.6 infavour fo the complainant and her sister and also denied its contents. In order to prove the defence of the accused that, signatures found on Ex.P.1 ie 25 C.C.No.24915 /2015 Ex.P.1(a) and Ex.P.6 ie. Ex.P.6(a) are not of her signatures, the accused has filed an application U/s.45 of Indian evidence Act to refer the cheque i.e. Ex.P.1 and Ex.P.6 along with the admitted signatures to hand writing expert to give opinion with regard to the signatures found on them and submit the reports, the said application was opposed by the complainant but the court has allowed the said application filed by the accused and referred the cheque i.e. Ex.P.1, Ex.P.6 and admitted/standard signatures of the accused, Memo of instructions to the handwriting expert i.e. CFSL, Hyderabad, Telangana for getting opinion about the disputed signatures. In turn the hand writing expert i.e. Deputy Director and Sc.D by name Sri. P. Vijaya Shankar, CFSL, Hyderabad after conducting the examination has submitted a detailed report along with the comparison of questioned signatures with the admitted signatures and standard signatures and also gave his opinion stating that, " The enclosed writings stamped and marked Q1, Q2, S1 to S9 and S10 to S15 were all written by one and 26 C.C.No.24915 /2015 the same person i.e.,the person who wrote the standard signatures marked as S1 to S9 and S10 to S.15 i.e. the admitted signatures of the Accused also wrote the questioned signatures marked as Ex.P.1(a), P.6(a). Hence, the report submitted by the Hand writing expert apepars that, according to him, the signatures found at Ex.P.1(a) and P.6(a) i.e. on the cheque in question and Hand Loan Agreement and the admitted signatures of the accused i.e. S1 to S.9 and S10 to S.15 were all written by one the same person ie., the accused because the accused during the course of her crossexamination has clearly admitted that, the signature found at Ex.P.6(a) is of her signature, in such circumstances it can be held that, the signature found at Ex.P.1(a) and P.6(a) are the signatures of the accused. It is also important to note here that, after receipt of the report from the Hand writing expert the Accused has not filed her objections to the report submitted by the hand writing expert. Even the Accused has not made any efforts to examine the handwriting expert to prove that, the opinion formed by the handwriting 27 C.C.No.24915 /2015 expert is false or it cannot be acceptable one as the said hand writing expert's opinion is not based on qualified or scientific method or the expert has not examined the disputed and admitted signatures as stated by him in his report, hence in view of non disputing of the Handwriting expert's opinion dated;24.9.2018 and non examination of the hand writing expert by the Accused, the report submitted by the Handwriting expert can be taken into consideration to the effect that, the complainant has proved that the signatures found at Ex.P.1(a) i.e. cheque in dispute and Ex.P.6(a) ie. Hand Loan agreement are those of the accused and the accused has miserably failed to prove that, the signature found at Ex.P.1(a) and Ex.P.6(a) are not that of her signatures.
21. The accused has also disputed service of legal notice i.e Ex.P.3 upon her which is caused by the complainant. In order to prove the service of legal notice upon the accused the complainant has produced the postal receipt and acknowledgement 28 C.C.No.24915 /2015 which are at Ex.P4 and P5 but during the course of cross examination of the complainant ie PW.1 the accused has not disputed or denied the Ex.P.4 and P.5 through which the complainant had sent legal notice to her, apart from that, during the course of cross examination of the accused i.e DW.1 she has clearly admitted that, as per her information her counsel has mentioned her address in her affidavit evidence. Hence on comparing the address mentioned in the legal notice i.e. Ex.P.3 and on postal acknowledgement i.e Ex.P.5 and address mentioned by the accused in her affidavit evidence it goes to show that both addresses are one and the same, in such circumstances it can be held that, the complainant has sent legal notice through RPAD to the correct address of the accused and the accused has not denied her address mentioned in the legal notice and postal acknowledgement, in such circumstances it can be held that, the legal notice sent to the correct address of the accused is deemed to have been served on the accused through RPAD in view of Sec. 27 of the General Clauses Act.
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22. In this regard, it is relevant here to refer the decision of Hon'ble High Court of Karnataka reported in 2011 ACD 1572 (KAR) in the case of Jayamma Vs. Lingamma, wherein the Hon'ble High Court held that, "Notice sent at correct address returned unclaimed - is deemed to be served. It is also relevant here to refer the decision reported in 2008(4) Civil code cases 027 (SC) "M/s. Indo Automobiles Vs., M/s. Jai Durga Enterprises and others." Wherein the Hon'ble Apex Court held that, notice sent by registered post with acknowledgement to a correct addressservice of notice has to be presumed. Therefore in view of the principles of law in the above decisions, in the present case also the Accused has not disputed her address mentioned on the RPAD cover, postal receipt and acknowledgement, in such circumstances it can be safely held that, the service of notice on accused in this case is presumed to have been served on her, since in this case also the complainant has issued notice to the accused to her correct address through 30 C.C.No.24915 /2015 registered post and the said notice was served on the accused which is evidenced by Ex.P.5 postal acknowledgement hence, the notice issued by the complainant through registered post is held to be proper service and for the above said reasons, the contentions taken by the learned counsel for the accused that, the notice issued by the complainant was not served on the accused and the complainant has not complied the mandatory requirements of Sec.138(b) of N.I.Act and complaint is not maintainable cannot be acceptable and are not sustainable.
23. It is the specific defence of the Accused that, she has denied the transaction in question and source of income i.e, financial capacity of the complainant and also denied the lending of loan amount to her. In order to prove the financial capacity of the complainant and transaction in question, the complainant has produced the Hand loan agreement dated: 18.1.2012 executed by the accused which is at Ex.P.6. On perusal of Ex.P.6 it 31 C.C.No.24915 /2015 appears that, the accused has availed a loan of Rs.3 Lakhs from the complainant and her sister by name Smt. S.G.Usharani for her personal problem and also seen that, the accused has acknowledged the receipt of the said loan amount before the witnesses and has agreed to pay the interest at the rate of 4% p.m. It is true that, the accused has denied the execution of Ex.P.6 in favour of the complainant and her sister and denied her signature found at Ex.P.6(a), but the accused/DW.1 in her cross examination at page No.2 has clearly admitted that, the signature found at Ex.P.6(a) is that of her signature and also not specifically denied the other signatures found on the Ex.P.6 and it is also admitted by the accused that, the stamp papers to prepare Ex.P6 i.e Hand loan agreement were brought by the complainant, therefore in view of the above admissions of the accused makes it clear that, the accused has admitted her signature found at Ex.P.6(a) and also admitted that the stamp papers which were used to prepare the Ex.P.6 were brought by the complainant. In addition to that, it is also 32 C.C.No.24915 /2015 relevant here to mention that, the accused has filed an application U/s 45 of Indian Evidence Act to refer the Ex.P.6 along with her admitted signatures to the Handwriting expert to give opinion with regard to the questioned signature found on Ex.P.6 and the said application was allowed and Ex.P.6 was also sent to the Handwriting expert along with admitted signatures of the accused and inturn the handwriting expert submitted detailed report along with the comparison of the questioned signature with the admitted and standard signatures and gave his opinion stating that, the admitted signatures of the accused also wrote the questioned signature marked as Ex.P.6(a), hence as per the report of the hand writing expert the signature found at Ex.P.6(a) is also that of the signature of the accused. Even after receipt of the report from the handwriting expert the accused either filed her objections to the report or examined the hand writing expert for disproving the report, hence in such circumstances an adverse inference can be drawn against the accused that, the accused has not examined the hand writing expert to 33 C.C.No.24915 /2015 disprove the report for the reasons best known to her, in view of undisputed report which is submitted by the Handwriting expert can be taken into consideration to the effect that, the signature found at Ex.P.6(a) is that of the signature of the accused. It is also seen from Ex.P.6 that the accused has borrowed a sum of Rs.3 Lakhs from the complainant and her sister and agreed to repay the said amount with interest at the rate fo 4% p.m.
24. The complainant has also produced bank challans i.e. Ex.P.7 to P.9 and on perusal of Ex.P.7 to P.9 it appears that, the complainant has deposited an amount of Rs.25,000/ on 16.1.2012, an amount of Rs.25,000/ on 18.1.2012 and Rs.45,000/ on 20.1.2012 to the account of the accused. It is true that, during the course of cross examination of the complainant though the complainant has disputed the Ex.P.7 to P.9 by contending that, the brother of the complainant availed hand loans from the accused and towards repayment of the said hand loan the brother of the 34 C.C.No.24915 /2015 complainant has got repaid to the accused as per ex.P.7 to P.9 but not towards loan advanced by the complainant, but in order to believe the said defence the accused has not produced single piece of document, except the oral suggestion nothing has been placed before the court to believe her defence that, Ex.P.7 to P.9 are towards repayment of the hand loan availed by the brother of the complainant, therefore in the absence of such material document the defence of the accused cannot be acceptable one , on the contrary the accused has not denied the transfer of the amounts as per Ex.P.7 to P.9 to the account of the accused which is evidenced by the bank account statement of the accused i.e. Ex.P.11. If really the amounts which are deposited under Ex.P.7 to P.9 by the brother of the complainant, the same would not have been in the custody of the complainant and the bank statement of the accused Ex.P.11 clearly discloses that, the amounts which were deposited are credited to her account, in such circumstances the complainant has successfully proved that, she has deposited the amounts as per 35 C.C.No.24915 /2015 Ex.P.7 to P.9, on the contrary the accused has not produced any documents to believe her defence that, the said deposits were made by the brother of the complainant towards the repayment of the hand loan availed by him from the accused.
25. The complainant has also produced one Consideration receipt executed by the accused which is at Ex.P.10. The perusal of Ex.P.10 it appears that, as per the recitals an amount of Rs.2 Lakhs has been received by the accused by executing the pronote in favour of the complainant in the presence of the witnesses and also seen that, out of Rs.2 lakhs an amount of Rs.1,04,000/ paid in cash and remaining amount of Rs.96,000/ paid in cheque bearing No. 234487. It is true that, during the course of cross examination of complainant the accused has denied the execution of Ex.P.10 and also receipt of Rs.2 Lakhs but except the denial nothing has been placed before the court to discard the Ex.P.10 and its contents , on the contrary the amount which was paid by way of cheque i.e. Rs.96,000/ through 36 C.C.No.24915 /2015 cheque bearing No. 234487 is reflected in the bank account statement of the accused i.e. Ex.P.11 credited in favour of the accused or to the account of the accused and the said fact has not been denied by the accused, in such circumstance in view of non denial of the entry found in Ex.P.11 with regard to transfer of amount of Rs.96,000/ by way of cheque bearing no. 234487 to the account of the accused can be held that, the accused has admitted the receipt of the said amount, accordingly there is no hesitation in accepting the Ex.P.10 consideration receipt produced by the complainant and also held that, as per Ex.P.10 the accused has received an amount of Rs.2 Lakhs and in turn has executed the consideration receipt as per Ex.P.10 in favour of the complainant.
26. It is also important to note here that, the learned counsels for the accused during the course of argument has much argued that, as per the averments of the complaint, sworn statement and evidence of the complainant, there is no mentioning 37 C.C.No.24915 /2015 of or disclosing of earlier transaction i.e. in the year 2011 as stated by the complainant in her cross examination and complainant has not produced the documents pertains to the transaction of the year 2011. It is also argued that the complainant has produced Ex.P.7 to P.9 i.e. bank challans alleged to have been deposited the amounts on 16.1.2012, 18.1.2012, 20.1.2012 but as per Ex.P.6 an amount of Rs. 3 Lakhs lent by way of cash on the same date i.e. on 18.1.2012, on the contrary as per Ex.P.8 and Ex.P 9 an amount of Rs.25,000 and Rs.45,000/ deposited on 19.1.2012 and 20.1.2012 i.e. after alleged execution of the Ex.P.6, in such circumstances it can be held that, the complainant got created the Ex.P.6 and produced before the court and apart from that, the complainant herself admitted in her cross examination that, the amount deposited as per Ex.P.7 to P.9 is inclusive of the amount shown in Ex.P.6 , in such circumstances if really the amount mentioned in Ex.P.6 is inclusive of Ex.P.7 to P.9, the amount deposited under Ex.P.8 and P.9 should not be paid after alleged execution of Ex.P.6, therefore 38 C.C.No.24915 /2015 the complainant got created the Ex.P.6. It is also argued that, the complainant has produced Ex.P.10 consideration receipt dated: 20.10.2011 much prior to the transaction of Rs.2 Lakhs and there is no whisper about Ex.P.1 either in complaint or evidence and in the crossexamination of complainant, she has admitted that, she has paid Rs.2 Lakhs on 20.10.2011 as per Ex.P.10 and as per Ex.P.6 an amount of Rs.3 Lakhs paid on 18.1.2012, therefore what was the necessity to pay Rs.3 Lakhs again within three months from the date of lending of loan amount of Rs.3 Lakhs and why the complainant has not taken action against the accused as per Ex.P.10, in such circumstances also goes to show that the complainant got created Ex.P.6 and P.10.
27. On careful perusal of the entire cross examination of the complainant conducted by the accused it appears that, nothing has been elicited from the PW.1 i.e complainant that, the cheque in question has not been issued to the complainant and signature found on the Ex.P.1 cheque is not of the 39 C.C.No.24915 /2015 signature of the accused and the legal notice caused by the complainant was not served on the accused and even nothing has been elicited from the complainant that, as per the defence of the accused the cheque in question i.e. Ex.P.1 was stolen by the brother of the complainant, in such circumstances it can be held that, the complainant proved that, the cheque belongs to the accused and signature found on the accused is that of the accused and as it is already held that, the complainant complied the mandatory requirements as required u/s 138 of N.I. act, in such circumstances a initial presumption can be drawn U/s 118a and 139 of N.I. Act that, the cheque in question issued in the accused towards discharge of legally recoverable debt as held by the Hon'ble Apex Court of India in "Rangappa Vs. Mohan", reported in (2010) 11 SCC 441 and in Crl.Appeal No.508/2018 dated:15.3.2018 between ROHITBHAI JIVANLAL PATEL VS. STATE OF GUJARATH AND ANR. It is true that, some minor discrepancies have been elicited by the accused during the course of crossexamination of the 40 C.C.No.24915 /2015 complainant with regard to the documents i.e. Ex.P.7 to P.9 i.e. the date of amounts deposited by the complainant to the account of the accused and date of execution of Ex.P.6 and mode of payment made by the complainant and her sister in Ex.P.6 but only on the basis of said minor discrepancies the entire documentary evidence of the complainant cannot be thrown out unless and until the accused has been able to rebut the presumption available to the complainant u/s 118a and 139 of NI Act. In this regard it is relevant here to refer the decision of Hon'ble Apex Court decided in Crl.Appeal No. 1545/2019 dated:17.10.2019 in the case of Uttam Ram Vs. Devindar Singh Hudan and Anr." wherein the Hon'ble Apex Court held that "the burden is on the accused to rebut the presumption that, cheque was issued not for any debt or other liability and it is immaterial that, cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer" and also held that, 41 C.C.No.24915 /2015 "Complainant cannot be insisted to prove a debt in question as if it required to be proved before the Civil Court". Hence, in this case also the arguments canvassed by the learned counsel appears that, complainant is required to prove the existence of debt as if it require to be proved in Civil code, in such circumstances and in view of the principles of law laid down by the Hon'ble Apex Court of India in the above referred decision the arguments canvassed by the learned counsel for the accused cannot be acceptable one and in support of his argument the decisions relied upon by him are not applicable to the defence of the accused in this case, with due respect to the principles of law laid down by the Hon'ble Apex Court and High Court of Karnataka in the decisions relied upon by the learned counsel for the accused are not applicable in this case as the facts and circumstances of the present case and facts and circumstances of the decided cases referred in the decisions are not one and the same. It is also true that, the complainant has not averred about the documents i.e. Ex.P.6 to P10 either in the complaint 42 C.C.No.24915 /2015 or in her evidence as argued by the learned counsel for the accused but only on that ground the entire oral and documentary evidence of the complainant cannot be discarded. In this regard it is relevant here to refer the decision of Hon'ble Apex Court of India reported in LAWS(SC) 2019 882 SUPREME COURT OF INDIA (FROM BOMBAY) decided on 21.8.2019 in the case of "SHREE DHANESHWARI TRADERS Vs. SANJAY JAIN" wherein the Hon'ble Apex court held that "N.I.ACT SEC. 138 DISHONOUR OF CHEQUE - Appeal against acquittal - Though complaint contents no specific averments that cheques were issued or purchase made on credit, in his evidence, complainant clearly stated that cheques were issued for commodities purchased on credit oral and documentary evidence adduced by the complainant are sufficient to prove that it was a legally enforceable debt and that cheques were issued to discharge the legally enforceable debt 43 C.C.No.24915 /2015 with evidence adduced by the complainant, the courts below ought to have raised the presumption under Section 139 of NI Act, Evidence adduced by respondent accused is not sufficient to rebut the presumption raised under sec.139 of the Act acquittal of respondent accused set aside. Appeal Allowed.". Hence, the principles of law laid down in the above refereed decisions are aptly applicable to the facts of the present case on hand , though the complainant has not averred about the Ex.P.6 to P.10 either in her complaint or in her evidence but in the cross examination the complainant has clearly stated about the nature of the documents produced by her and transaction in question and how the documents are related to the transaction in question and also cheque in dispute, in such circumstances the arguments canvassed by the learned counsel for the accused cannot be acceptable one.
28. In addition to the above, as it is held that, 44 C.C.No.24915 /2015 the complainant has successfully proved the transaction in question and her financial capacity by producing the documentary evidence along with her oral evidence. Apart from that, it is relevant here to refer the decisions reported in 2001 AIR Karnataka HCR 2154 between 'M/s.Devi Tyres V/s.Navab Jan' and in 2011 ACD 1521 (KAR) between 'Smt. Usha Suresh V/s. Shashidharn', in 2010 SC 1898 between 'Rangappa Vs. Mohan' and 2011 ACD 1412 (KAR) between 'N.Hasainar Vs. M.Hasainar, S/o. Ibrahim'. The Hon'ble High Court of Karnataka in the above decision i.e., 2001 AIR Karnataka HCR 2154 at para No.6 was pleased to hold that issuance of cheque itself was adequate proof of existence of debt or liability. In another decision of Hon'ble Apex Court of India i.e. Hon'ble Three Judges Bench Decision reported in (2010) 11 SCC 441 in the case of Rangappa Vs. Sri. Mohan ., wherein the Hon'ble Apex Court held that "
A. Negotiable Instruments Act, 1881 - S.139 -
45 C.C.No.24915 /2015 Presumption under - scope of - Held, presumption mandated by S. 139 includes a presumption that there exists a legally
enforceable debt or liability - However such presumption is rebuttable in nature - Criminal Trial - Proof - Presumptions - Generally. Further held that "Signature on the cheque was his, statutory presumption under S.139 comes into play and the same was not rebutted even with regard to the materials submitted by complainant Appellant not able to prove "lost cheque" theory - Apart from not raising a probable defence appellant was also not able to contest the existence of a legally enforceable debt or liability - hence, his conviction by High Court, held, proper. In another decision of Hon'ble Apex Court of India, reported in CRIMINAL APPEAL NO. 508 OF 2018 DT 15032018 between ROHITBHAI JIVANLAL PATEL Vs. STATE OF GUJARAT AND ANR held that "Negotiable Instruments Act facts like 46 C.C.No.24915 /2015 source of funds are not relevant if the Accused has not been able to rebut the presumption. It is further held that " When such a presumption is drawn, the facts relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the Accused has been able to rebut the presumption or not". In another decision of Hon'ble Apex court of India decided in Crl.Appeal No.1545 of 2019 dt.17/10/2019 by the Hon'ble Apex Court of India in the case of Uttam Ram Vs. Devinder Singh Hudan and Anr. Wherein the Hon'ble Apex Court held that, " Dishonor of cheque - Statutory presumption under - burden to prove - the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other liability - it is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is 47 C.C.No.24915 /2015 duly signed by the drawer - even a blank cheque leaf, voluntarily signed and handed over by the accused which is towards some payment, would attract presumption U/s. 139 of NI Act - the accused is held guilty of dishonour of cheque for an offence U/s.138 of NI Act. It is also held that, "
the accused has failed to lead any evidence to rebut the statutory presumption, a finding returned by both the Trial Court and High Court. Both courts not only erred in law but also committed perversity when the due amount is said to be disputed only on the account of discrepancy in the cartons, packing materials or the rate to determine the total liability as if the appellant was proving his debt before the civil court. Therefore it is presumed that, the cheque in question were drawn for consideration and the holder of the cheques received the same in existing debt". It is also held that, " the Trial court and the High Court proceeded as if, the 48 C.C.No.24915 /2015 appellant is to prove a debt before civil Court wherein, the plaintiff is required to prove his claim on the basis of evidence to be laid in support of his claim for the recovery of the amount due. A dishonour of cheque carries statutory presumption of consideration. The holder of cheque in due course is required to prove that, the cheque was issued by the Accused and that when the same presented , it was not honoured Since there is a statutory presumption of consideration, the burden is on the Accused to rebut the presumption that, the cheque was issued not for any debt or other liability ". It is also relevant here to refer the decision of Hon'ble High Court of Karnataka reported in ILR 2019 KAR 493 in the case of Sri.Yogesh Poojary Vs. Sri.K.Shankara Bhat, wherein the Hon'ble High Court held that, the presumption mandated by Sec.139 of N.I Act includes the presumption that, there existed a legally 49 C.C.No.24915 /2015 enforceable debt or liability, however such presumption is rebuttable in nature". In another decision of Hon'ble High Court of Karnataka in the case of Shri.V.R.Shresti Vs. Shri. Bhaskara.P. in Crl. Appeal No. 2109/2017 dated: 15.10.2019 wherein the Hon'ble High Court of Karnataka held that "the Accused has not given any reply to the notice and also in the crossexamination, he categorically admits that, the cheque has bounced on account of no sufficient fund in the bank account of the Accused. Mere non producing of the document before the court with regard to the source of income to advance a loan is not a ground to dismiss the complaint. The Accused ought to have rebutted the contention of the complainant by producing cogent evidence before the court and mere denial is not enough". Therefore on careful reading of the principles of law laid down by the Hon'ble Apex Court of India and High Court of Karnataka in the above referred decisions makes it very clear that, once the holder in 50 C.C.No.24915 /2015 due course i.e. the complainant proved that, the cheque in question belongs to the drawer and signature appearing on the cheque is that of the drawer i.e., Accused and complied the mandatory requirements as required U/s.138 of N.I.Act, presumptions U/s.118a and 139 of N.I.Act indeed does extend to the existence of legally recoverable debt and when such presumption is drawn, the facts relating to the want of documentary evidence in the form of receipts or accounts or want of evidence regarding source of funds were not of relevant unless the Accused rebutted the presumption available to the complainant as held by the Hon'ble Apex Court and High Court of Karnataka in the above decisions. In the present case also the complainant has complied the mandatory requirements and has proved that, the Accused has issued the cheque in question in her favour and the Accused has admitted the cheque belongs to her account and the complainant has proved that, the signature appearing on the cheque is signature of the accused and legal notice issued by complainant was served on 51 C.C.No.24915 /2015 the Accused and accused has not given reply to the said notice, in such circumstances, presumptions have to be drawn even towards existence of legally enforceable debt as per Sec.118a and 139 of N.I.Act.
29. Therefore, for the above said reasons the defence taken by the Accused that, the complainant has not produced the documents to show that, she was having source of income or funds to lend the loan amount to the Accused as on the date of lending of the loan amount and has not collected the documents for having advancing the loan amount to the Accused at the time of alleged lending of loan amount cannot be acceptable one. The defence taken by the Accused appears that, the complainant has to prove her claim by producing her evidence as if it is required for proving her debt before the Civil Court, but same cannot be permissible in proceeding initiated U/s.138 of N.I. Act, as held by the Hon'ble Apex court of India in the above referred decisions, therefore in view of the principles of law laid down in the above referred decisions it is presumed that, 52 C.C.No.24915 /2015 cheque in question was drawn for consideration as the Accused has admitted the cheque in question belongs to her account and complainant proved that, the signature found on the cheque in question is signature of the accused. Therefore for the above said reasons the arguments canvassed by the learned counsel for the defence cannot be acceptable one. It is also important to note here that, with due respect to the principles of law laid down by the Hon'ble Apex Court and High Court of Karnataka in the decisions relied upon by the learned counsel for the accused in support of his argument are not applicable to the defence of the accused in this case, as the accused has miserably failed to rebut the presumptions available to the complainant and the facts and circumstances of this case and facts and circumstances of the decided cases referred are not one and the same.
30. It is relevant here to mention that, as it is already decided in the above that, the complainant has proved that the cheque in question i.e Ex.P1 53 C.C.No.24915 /2015 belongs to the Accused and signature found at Ex.P.1(a) is that of the signature of the Accused and also proved that, the cheque in question was presented within its validity period and the same was dishonoured for the reason of "Account closed" as per Ex.P.2 and thereafter the legal notice caused by her through RPAD to the Accused and the said notice was served on her and the Accused has not given reply to the legal notice, in such circumstances, it can be held that, the complainant has discharged her initial burden by complying the mandatory requirements as required U/s.138 of N.I. Act and initially the presumptions are available in favour of the complainant U/s.118a and 139 of the N.I. Act. Consequently it is for the Accused to rebut the said presumptions available in favour of the complainant to show that, the cheque in question was not issued either to the complainant or towards discharge of any legally recoverable debt by producing cogent and convincible evidence but not mere suggestions or even by plausible explanation. In such circumstances, when the presumptions 54 C.C.No.24915 /2015 U/s.118 and 139 of N.I.Act are available to the complainant, even the said presumption can be drawn to the extent of existence of legally recoverable debt or liability against the Accused, unless and until the said presumptions are rebutted by the Accused even though the documents are not produced by the complainant with regard to loan transaction in question.
31. The Accused in order to rebut the presumptions available to the complainant U/s.118(a) and 139 of N.I. Act and to substantiate her defence herself examined as DW.1. The Accused/DW.1 in her evidence deposed that she never borrowed money from the complainant and issued cheque in question and the brother of the complainant by name S.G.Subramani arranging package tour and she never received any hand loan from the complainant and the hand writing in the cheque is not her handwriting and brother of the complainant had stolen the cheque and misused the same by filing different cases against her by himself 55 C.C.No.24915 /2015 and through his sisters in C.C.No.6326/2015 for sum of Rs.1 Lakh, C.C.No.3352/2014 for sum of Rs.1,50,000/ both cases are pending on the file of 19th ACMM and this case and also filed a case against her son in C.C.No.5119/2016 which is pending on the file of 19th ACMM and all the cheques have stolen by complainant's brother and the complainant has suppressed the above cases and filed this false complaint against her. The accused/DW.1 further deposed that, she has not received the legal notice issued by the complainant and after the summons is received in this case she came to know that, complainant has filed this false case against her by misusing the stolen cheques by the complainant's brother during his visit to her house frequently, immediately after her appearance in this case lodged a police complaint against complainant and her brother and police have called them to police station and enquired wherein the complainant has agreed that, she has not issued the cheques to her in respect of the claim made by the complainant and she is not liable to pay amount as 56 C.C.No.24915 /2015 claimed and there is no legally enforceable debt to claim from her and complainant has filed false case against her.
32. According to the accused, her main defence is that, she has not received any loan amount from the complainant and has not issued cheque in question to the complainant towards discharge of legally recoverable debt and signature in the cheque is not of her signature and the hand writing are also not of her handwriting. It is also the defence of the accused that, the brother of the complainant had stolen cheques from her house during his visit to her house and by misusing the said stolen cheques the brother of the complainant by name S.G.Subramani filed different cases by against her and her son by himself and through his sister in C.C.No. 6326/2015, C.C.No.3352/2014 and C.C. 5119/2016 which are pending on the file of 19 th ACMM and this case. In order to prove the defence of the accused, except the oral i.e self serving statement no single piece of document is produced before court, even 57 C.C.No.24915 /2015 though the accused has stated that, she has filed a police complaint against the brother of the complainant and complainant regarding alleged stolen of cheques from her house and filing of false cases against her and her son but nothing has been placed before the court to prove the said defence, therefore in the absence of documentary evidence only on he basis of self serving oral evidence the defence of the accused cannot be acceptable one and the said defence is appears to be formal and denial in nature.
33. It is also important to note here that, if really the accused came to know about the stolen of her cheques by the brother of the complainant i.e. S.G. Subramani and misused the said cheques by filing different cases by him and through his sisters against her and her son and in turn the accused has lodged complaint against the complainant and her brother, definitely the accused would have produced the documentary proof before the court but no such documents were forthcoming before the court in such 58 C.C.No.24915 /2015 circumstances the very conduct of the accused in nonproduction of the documents to show that, she had taken or initiated action against the complainant or her brother for alleged misuse of the cheque in question and other cheques may leads to draw an adverse inference against the Accused that, the Accused has not initiated any action against the complainant or her brother only for the reasons that, the cheque in question has been issued by her to the complainant towards discharge of the transaction in question i.e. legally recoverable debt. If really the complainant misused the cheque of the Accused as alleged by her in her defence no ordinary prudent man should be kept quite without taking action, even after notice of alleged misuse of the cheque by the complainant, on this count also the defence taken by the Accused cannot be acceptable one. In this regard, it is relevant here to refer the decision of Hon'ble Apex Court of India reported in AIR 2018 SC 3601 in a case of T.P.Murugan(dead) Thr. Lrs.V. Bhojan Vs. Posa Nandi, rep. Thr. Lrs. PA holder, T.P.Murugan Vs. Bhojan, wherein the 59 C.C.No.24915 /2015 Hon'ble apex Court held that " Negotiable Instruments Act (26 of 1881) Ss.118, 138, 139 - Dishonour of cheque - Presumption as to enforceable debt cheques allegedly issued by accused towards repayment of debt Defence of accused that 10 cheques issued towards repayment of loan back in 1995 - behavior of accused in allegedly issuing 10 blank cheques back in 1995 and never asking their return for 7 years, unnatural - Accused admitting his signature on cheques and pronote, presumption under S.139 would operate against him - Complainant proving existence of legally enforceable debt and issuance of cheques towards discharge of such debt Conviction, Proper". Hence by applying the said principles of law to the present facts of the case in the present case also the accused has not made any efforts to get return of cheque alleged to have been misused by the complainant by filling the same and presenting 60 C.C.No.24915 /2015 the said cheque to the bank, under such circumstances, the said unnatural conduct of the accused in non taking of action, an adverse inference can be drawn against the accused that, the cheque in question issued by the accused towards discharge of the liability and presumption U/s.139 of N.I. Act would operate against her, as she has admitted the cheque in question is belongs to her and complainant proved that, cheque in dispute bears the signature of the accused.
34. The learned counsel for the accused also argued that, as per the para No.4 of the complaint averments the debt in question itself is time barred i.e. according to the complainant she and her sister advanced a loan of Rs.3 Lakhs on 18.1.2012 and inturn the accused executed hand loan agreement on the same day and the cheque in question issued is dated: 8.6.2015 ie., the cheque in question issued after lapse of three years from the date of alleged payment made by the complainant and her sister ie., from 18.1.2012, therefore even for sake of 61 C.C.No.24915 /2015 discussion, if it is assumed that, the loan was advanced on 18.1.2012 the said loan has to be recovered within three years from the date of advance ie., on or before 18.1.2015, in such circumstances the alleged debt in question is time barred debt and the cheque in question cannot be enforceable under the law against the accused. As it is already held in the above that, the accused has clearly admitted her signature found at Ex.P.6(a) i.e. on Hand Loan agreement and also the complainant proved that, the Ex.P.6 has been executed by the accused in her and her sister's favour for having receipt of hand loan of Rs.3 Lakhs. But it is clearly averred by the complainant in the complaint and also stated in her evidence that, after completion of the period of one year from the date of execution of the Hand Loan agreement she approached the accused requesting her to repay the loan amount with interest but the accused requested for further more two years time to repay the loan amount along with itnret and accordingly after completion of the said period on 18.1.2015 the complainant approached the accused 62 C.C.No.24915 /2015 and requested her to repay the loan amount with interest accured thereon, accordingly on 18.1.2015 towards repayment of the loan amount with interest the accused issued post dated cheque dated:
8.6.2015 for sum of Rs.6,6,0,000/ in her favour.
Hence, it goes to show that, the cheque in question has been issued within the time but not issued for time barred debt, it is relevant here to mention that, during the course of crossexamination the accused has not crossexamined on this aspect and the accused was totally silent with regard to time barred debt, on this count also the arguments of the learned counsel for the accused cannot be acceptable one. In addition to that, it is true that, the complainant is claiming the loan amount pertaining to the transaction of the year 2012 i.e 18.1.2012 and it is also an admitted fact that, the cheque in question issued in the year 2015 ie dated:8.6.2015, now the question before the court is whether the cheque in question was issued in discharge of time barred debt or not and debt in question is not legally enforceable at the time of issuance of cheque in question. In this 63 C.C.No.24915 /2015 regard, it is relevant here to refer sec. 25(3) of the Contract Act which is very clear that, there is a promise made in writing and signed by a person to be charged there with to pay wholly or in part a debt which is time barred by law of Limitation. In this regard, it is relevant here to refer the decisions of the Hon'ble High Court of Karnataka and Bombay reported in Crl. Appeal No. 2275/2006 in the case of G. Muniswamy Vs. H.S.Nagendra Kumar
2) Crl. Application No. 2933/2007 in the case of Mr. Dinesh B Choksi Vs. Rahul Vasudeo Bhat 3) ILR 2006 KAR 4242 in the matter of H.Narasimha Rao Vs. R. Venakataram. In the decision of ILR 2006 KAR 4242 wherein the Hon'ble High Court had held that " In case if the time barred debt is agreed to be paid through a cheque there is no legal bar for the debtor agreeing to pay time barred debt and the cheque issued towards repayment of time barred debt also constitute offence U/s.138 of the Act . The Hon'ble High Court of Bombay has also held 64 C.C.No.24915 /2015 that, "Sub section 3 of Sec. 25 of the Contract Act is an exception to the General Rule that, an agreement made without consideration is void. Sub Sec.3 of Sec. 25 of the Contract Act also applies to a case where there is a promise made in writing and signed by a person to be charged there with to pay wholly or in part a debt which is barred by law of limitation". It is further held that, a case of promise created by a cheque issued for discharge of a time barred debt or liability and once it is held that, a cheque drawn for a discharge of a time barred debt creates a promise which becomes enforceable contract, it cannot be said that, cheque is drawn in discharge of debt or liability which is not legally enforceable. The promise in the form of a cheque drawn in discharge of a time barred debt or liability becomes enforceable by virtue of Sub section 3 of Sec. 25 of the Contract Act. Thus, such cheque becomes a cheque drawn in 65 C.C.No.24915 /2015 discharge of legally enforceable debt as contemplated by the explanation to sec. 138 of the said Act of 1881. Hence, in view of the principles of law laid down by the Hon'ble High Court of Karnataka and Bombay in the above referred decisions in the present case also the Accused has promised to pay the time barred debt by acknowledging the debt and issued the cheque in question i.e Ex.P.1 towards discharge of the debt or liability, in such circumstances, the promise is in the form of a cheque drawn discharge of debt in question which becomes enforceable by virtue of Sec. 25 (3) of the Contract Act. Therefore the arguments canvassed by the learned counsel for the accused i.e., the cheque in question issued cannot be enforceable as the debt in question is time barred cannot be acceptable one.
35. Therefore considering all these aspects of the case and totality of the circumstances and on careful and meticulous appreciation of evidence adduced on behalf of the complainant and accused 66 C.C.No.24915 /2015 the complainant has successfully established beyond all reasonable doubt that, he has lent an amount of Rs.6 Lakhs to the Accused and in order to discharge the said loan amount and interest, the accused has issued the Ex.P.1 cheque in question for sum of Rs. 6,60,000/ in favour of the complainant and thereafter the complainant has presented the said cheque through her banker and same was returned dishonoured with an endorsement of "Account closed" and thereafter she got issued legal notice to the accused and the said notice was served on her, inspite of it, the Accused did not paid the cheque amount, hence the complainant filed the present complaint against the accused. On the other hand, the accused has failed to rebut the presumption available infavour of the complainant with regard to the existence of legally recoverable debt under Ex.P.1 Cheque. Therefore accused has committed an offence punishable U/s.138 of N.I. Act, accordingly for the above said reasons this point is answered in the Affirmative.
67C.C.No.24915 /2015
36. Point No.2: Negotiable Instrument Act was enacted to bring credibility to the cheque and the very purpose of enactment is to promote the use of negotiable instrument, while to discourage the issuance of cheque without having sufficient funds in their accounts. Such being the case the intention of the legislature is that, complainant be suitable compensated while accused be punished for her act. Hence while awarding the compensation the said fact is to be kept in mind and suitable compensation is awarded to the complainant certainly it will not cause injustice to the accused, accordingly the complainant is entitled for the compensation as ordered by the court and for the said reasons, it is just and proper to pass the following : ORDER Acting U/sec.255(2) of Cr.P.C. the accused is convicted for the offence punishable U/sec.138 of N.I.Act.
The accused is sentenced to pay a fine of Rs. 6,75,000/= (Rupees Six Lakhs and Seventy Five Thousand only) within one month from the date of 68 C.C.No.24915 /2015 order, in default she shall under go simple imprisonment for a period of (3) three months for the offence punishable U/sec.138 of N.I.Act.
Further acting U/sec.357(1) of Cr.P.C. out of the fine amount on recovery, a sum of Rs. 6,70,000/= (Rupees Six Lakhs and Seventy Thousand only) shall be paid as compensation to the complainant.
Further acting U/sec.357(1)(a) of Cr.P.C. out of fine amount on recovery a sum of Rs.5,000/= (Rupees Five Thousand only) shall be defrayed as prosecution expenses to the state.
Her Bail bond stands cancelled after appeal period is over.
. Office is directed to furnish free certified copy of this judgment to the Accused incompliance of Sec.363(1) of Cr.P.C.
(Directly dictated to the stenographer online, printout taken by her, verified, corrected and then pronounced by me in the open Court on this the 4th day of November 2020).
(SRI.S.B. HANDRAL), XVI ACMM, Bengaluru City.
69C.C.No.24915 /2015 ANNEXURE
1. List of witness/s examined on behalf of the Complainant: P.W.1 : Smt. S.G.Lakshmi
2. List of documents exhibited on behalf of the Complainant: Ex.P1 : Original Cheque;
Ex.P1(a) : Signature of the Accused;
Ex.P2 : Bank Memo Ex.P3 : Office copy of the Legal Notice; Ex.P4 : postal receipt; Ex.P5 : Postal acknowledgement; Ex.P.6 : Hand loan agreement Ex.P6(a) : Signature of the Accused Ex.P.6(b) : Signature of the complainant. Ex.P.7 to 9 : Deposit Challans Ex.P.10 : Pronote/consideration receipt Ex.P.10(a) : Signature of the accused; Ex.P.11 : Statement of the accounts of the accused
3. List of witness/s examined on behalf of the Accused: DW.1 : Smt. Shanthamma 70 C.C.No.24915 /2015
4. List of documents exhibited on behalf of the Accused: Nil (SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.
71C.C.No.24915 /2015 .
4.11.2020 case called out, Both counsels for Complainant and Accused are Absent.
Judgment pronounced in the open court vide separate order.
ORDER Acting U/sec.255(2) of Cr.P.C. the accused is convicted for the offence punishable U/sec.138 of N.I.Act.
The accused is sentenced to pay a fine of Rs. 6,75,000/= (Rupees Six Lakhs and Seventy Five Thousand only) within one month from the date of order, in default she shall under go simple imprisonment for a period of (3) three months for the offence punishable U/sec.138 of N.I.Act.
Further acting U/sec.357(1) of Cr.P.C. out of the fine amount on recovery, a sum of Rs. 6,70,000/= (Rupees Six Lakhs and Seventy Thousand only) shall be paid as compensation to the complainant.
Further acting U/sec.357(1)(a) of Cr.P.C. out of fine amount on recovery a sum of Rs.5,000/= (Rupees Five 72 C.C.No.24915 /2015 Thousand only) shall be defrayed as prosecution expenses to the state.
Her Bail bond stands cancelled after appeal period is over.
. Office is directed to furnish free certified copy of this judgment to the Accused incompliance of Sec.363(1) of Cr.P.C.
XVI ACMM, B'luru.