Bangalore District Court
K.V. Manjunath vs N. Anitha on 2 September, 2024
KABC020062542022
IN THE COURT OF THE XXII ADDL. JUDGE, COURT OF
SMALL CAUSES AND ADDL. CHIEF JUDICIAL
MAGISTRATE, BENGALURU CITY.
(SCCH24)
Presided Over by Smt. Roopashri, B.Com., LL.B.,
XXII ADDL., SCJ & ACJM,
MEMBER - MACT,
BENGALURU.
Dated: On this 2nd day of September 2024
C.C. No.3072/2022
1. Sl.No. of the Case : C.C.No.3072 of 2022.
2. The date of : 25052021
commission of the
offence
3. Name of the : Sri K.V. Manjunath,
Complainant S/o. Venkatasubbaiah,
Aged about 47 years,
R/at. No.S147,
Bharath Nagar,
Byadarahalli, Magadi Road,
Bangalore 560091.
(By Sri.L.S Krishnegowda,
Advocate)
4. Name of the Smt. N. Anitha,
Accused D/o. Narayanaswamy,
Senior Commercial Clerk,
Parcel Inwards office,
SCCH24 2 C.C.3072/2022
South Western Railway,
Bengaluru560 023.
(By Sri.R.Muralidara, Advocate)
5. The offence complained : Under Section 138 of the
of or proves Negotiable Instrument Act.
6. Plea of the accused and : Pleaded not guilty.
his examination
7. Final Order : Accused is found guilty
8. Date of such order for : 02092024
the following
JUDGMENT
This complaint is filed under Sec. 200 of Cr. P. C., for the offence punishable under Section 138 of the Negotiable Instruments Act.
2. The case of the complainant that: The accused is known to the complainant through his common friends by name Sri Maniraju and Sriram, who were also employees of Indian Railway. The accused is also an employee in Indian Railways. In the year 2018, the accused and her father Sri Narayanaswamy approached the complainant requesting for financial assistance towards purchase of a house property. On request of the accused, the complainant has lent sum of Rs.12,00,000/ to the accused between January 2018 to March 2019 by way of cash as hand loan. The accused has promised the SCCH24 3 C.C.3072/2022 complainant to pay 1% of simple interest per month. After receiving the loan amount, the accused kept on paying interest till August 2019, but later on she stopped paying the interest and started avoiding the complainant. In the month of June 2020, the complainant contacted the accused personally and demanded for the repayment of the entire loan amount along with agreed interest. At that time the accused expressed her inability to pay interest due to some personal problems, but, she agreed to clear the entire loan amount within a month. In the month of August 2020 the accused in order to clear the legal liability, has issued two postdated cheque bearing No.549649, dated 20012021 for sum of Rs.7,50,000/ and cheque bearing No.549650 dated 19022021 for a sum of Rs.4,50,000/, drawn on Syndicate bank Ganganagar (G.G. Halli) Branch, Bengaluru. When the complainant presented the cheque no. 549650 dated 19 022021 for encashment same was dishonored for the reason "signature differs" on 22022021. Thereafter, the complainant got issued legal notice to the accused on 15 032021 through RPAD as well as through Courier and same was returned unserved as 'No such Person in the Address' and both the notices sent to the office address of the accused were duly served. After receipt of the said legal notice, the accused failed to come forward and clear the said legal liability. Accordingly, the accused has SCCH24 4 C.C.3072/2022 committed an offence punishable under Sec.138 of N.I Act.
3. After recording the sworn statement of the complainant and also verifying the documents, cognizance was taken against the accused for the offence punishable under Sec. 138 of N.I. Act. The accused on receiving the summons appeared before this Court through her counsel and was enlarged on bail and her plea was recorded. The accused pleaded not guilty and claimed to be tried. Hence, the case was posted for evidence of the complainant.
4. The complainant got examined himself as PW.1, and got marked documents as Exs.P1 to 7. During the cross examination of Dw.1, the learned counsel for complainant confronted documents as per Ex.P8 and 9. Then, the case was posted for recording the statement of accused under Sec.313 Cr.P.C. In the statement U/s 313 Cr.P.C. the accused has denied all the incriminating evidence appearing against her and claimed to be tried, she has examined herself as Dw1 and two witnesses as examined as Dw.2 and DW.3 and got marked documents as Ex.D1 to D20. Hence, the case was posted for arguments.
SCCH24 5 C.C.3072/20225. Heard the arguments of both side and perused the records.
6. The following points arise for my consideration:
1. Whether the complainant proves that accused has committed an offence punishable under Sec.138 of N.I. Act?
2. What order?
7. My findings on the above points are as under
Point No.1: In the Affirmative Point No.2: As per final order for the following:
: R E A S O N S :
8. POINT NO.1: This is a private complaint filed under Section 200 of Cr.P.C. for the offence punishable under Section 138 of N.I. Act.
9. It is the definite case of the complainant that the accused who is known to him during the year 2018 has approached him requesting for financial assistance towards purchase of a house property. Accordingly, the complainant has lent sum of Rs.12,00,000/ to the accused between January 2018 to March 2019 by way of cash as hand loan. In the month of June, 2020, he contacted the accused personally and demanded for the SCCH24 6 C.C.3072/2022 repayment of the entire loan amount along with agreed interest. At that time the accused expressed her inability to pay interest. But, she agreed to clear the entire loan amount within a month and to discharge the said debt se has issued two postdated cheque bearing No.549649, dated 20012021 for sum of Rs.7,50,000/and cheque bearing No.549650 dated 19022021 for a sum of Rs.4,50,000/, drawn on Syndicate bank Ganganagar (G.G. Halli) Branch, Bengaluru. When the complainant presented the cheque no. 549650 dated 19022021 for encashment but same was dishonored for the reason as "
Signature differs " on 22022021 and after issuing legal notice, he has filed the complaint.
10. In order to substantiate the contention the complainant got examined himself as Pw1 and got marked in all 7 documents as ExP1 to Ex.P7. During the cross examination of Dw.1, the learned counsel for complainant confronted documents as per Ex.P8 and 9. If the documents produced by the complainant are perused, ExP1 is the cheque dated 19022021 which bears the signature of accused. The accused nowhere has disputed the cheque relates to her account so also her signature in the Ex.P1. It is deposed by Pw1 that cheque in question was issued by the accused for discharge of liability. The cheque in question was presented by the complainant SCCH24 7 C.C.3072/2022 through his banker which was returned with a memo as per ExP2 stating 'Signature Differs'. Hence, he got issued legal notice to the accused through RPAD, which is produced at Ex.P.3. The postal receipt is marked at Ex.P.4. The Courier receipt is marked as Ex.P5. The Postal acknowledgment is marked as Ex.P.6. Postal envelope is marked as Ex.P.7. The replay notice issued by accused is marked as Ex.P.8 and Loan agreement is marked as Ex.P.9.
11. It is the defence taken by the accused that complainant is stranger to her and there is no transaction what so ever between her and the complainant, that complainant is the brother of K.V Raghavendra who was working in South Western Railway and president of S W Railway Union who is the close friend of one D Babu who is also an employee in South Western Railway.
12. It is further submitted that accused and her father with an intention to have residence of the family purchased house property at Kadogodi for a consideration of Rs.45,00,000/ vide sale deed dated 07022012. At that time her father had availed housing loan of Rs.30,00,000/ from Karnataka Bank, Srirampura Branch. The accused was the coobligate to the said loan transaction.
SCCH24 8 C.C.3072/202213. It is further submitted that during the year 20162017, her father was unable to repay the home loan to the Karnataka Bank, hence bank has issued possession dated 06012017 of the residential property. The accused and her father challenged the issuance of possession notice before the DRT Bangalore in S.A No.93/2017. The Debt Recovery Tribunal has passed stay order subject to the condition of depositing fees Rs.3, 00,000/ within one month from 02022017. At that time the accused and her father was in financial crisis. Through the Railway Employees her father came to know about D Babu who was working as Treasurer in South Western Railway Union and privately doing finance business. The father of the accused approached him and requested for hand loan of Rs.2,00,000/ in order to comply the order passed by the DRT in S.A No.93/2017. The said D Babu agreed to extend hand loan of Rs.2,00,000/ with interest at 5% per month and demanded for to blank signed cheque as security to the said loan transaction and assured that on repayment of loan he will return the cheque given as security. Accordingly the accused has issued to blank signed cheque (disputed cheque) as security.
14. It is further submitted that on 30032017 the father of accused deposited sum of Rs.3,00,000/ SCCH24 9 C.C.3072/2022 including Rs.2,00,000/ borrowed from D Babu towards loan repayment. Thereafter the accused and her family members started repaying the loan along with interest to D Babu by way of cash and digital payment.
15. It is further submitted that on 07082019, 04022020 and 04032020 the accused paid Rs.36,000/ each through Google pay of her sister Pushapalath to the Karnataka Bank account of D Babu. Whenever the accused and her family members paid amount through Google pay, D Babu used to object and demanded to repay the loan by way of cash. Hence, accused and her father had repaid the hand loan by way of cash and repaid entire loan amount with interest pending balance amount of Rs.25,000/.
16. It is further submitted that in the first of July 2017 the accused and her father had been to the office of D Babu with an intention to pay the balance amount of Rs.25,000/ and to collect blank signed cheque issued towards loan transaction. At that time they came to know that D Babu was arrested by police due to job scam in the Bangalore Railway Division. Thereafter the accused and her father unable to contact D Babu to settle the loan transaction and to take back blank cheque given to D Babu.
SCCH24 10 C.C.3072/202217. It is the further case of the accused that to their surprise, K V Raghavendra who is the close associate of D Babu approached the accused and demanded for Rs.12,00,000/ stating that he is in possession of blank cheque which are handed over to D Babu. The said K.V Raghavendra threatened the accused that he will extract money from the accused and her father through the help of his known person in the police Department and on 27072020 they have been called from Subramanya police station and instructed to pay amount to K V Raghavendra. When accused and her father explained the real fact, the police did not pursue the same.
18. It is further submitted that when the complainant and his brother K V Raghavendra threatened the accused and her father with dire consequences, herself and her father lodged complaint before Magadi Police Station on 29072020 against complainant and her brother.
19. It is further submitted that the said K V Raghavendra in collusion with complainant has misused the blank singed cheque given to D Babu and lodged false complaint against the accused.
SCCH24 11 C.C.3072/202220. If the reply notice as per Ex.P8 given by the accused is perused, wherein at para no.13 she has stated that the two cheques mentioned in the legal notice were misplaced long back from her residence and same pertains to the year 2013 and that the said cheques were not signed by her and blank cheques without signature were missing from 2013. By giving reply notice to the aforesaid effect, the accused has disputed her signature in the disputed cheque. It is relevant to state here that the accused having disputed her signature in the cheque but when it turned to her evidence by way of examination in chief, she herself has admitted her signature in the cheque and taken the defence that she has given blank signed cheque to one D Babu. During the cross examination of PW.1 also, the accused while admitting her signature in the Ex.P1 has taken the defence that she has given the blank signed cheque as security to one D Babu. Except in the reply to legal notice, throughout the proceedings the accused has admitted her signature in the Ex.P1 and also admitted that Ex.P1 relates to her account.
21. It is well settled that; "The Statutory presumption mandated by sec.139 of the Act, does indeed include the existence of a legally enforceable debt or SCCH24 12 C.C.3072/2022 liability. However, the presumption U/S 139 of the Act is in the nature of a rebuttable presumption and it is open for the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested".
22. In a ruling relied by the learned counsel for ac cused reported in AIR 2008 SC 1325 between Krishna Ja nardhan Bhat Vs. Dattaatraya it was observed that "exis tence of legally recoverable debt is not a matter of pre sumption u/Sec.139 of ACT. It merely raised presump tion in favour of holder of the cheque that the same has been issued for discharge of any debt or other liability".
23. In (2014) 2 SCC 236 between John K Abraham Vs. Simon C, it was observed that "In order to draw pre sumption under S.118 and r/w 139, burden lines on com plainant to show: (i) that he had the requisite funds for advancing the sum of money/loan in question to ac cused,
(ii) that the issuance of cheque by accused in sup port of repayment of money advanced was true, and
(iii) that the accused was bound to make payment as had been agreed while issuing cheque in favour of com plainant".
SCCH24 13 C.C.3072/202224. In 2008 AIR SCC 7702 between Venugopal Vs. Madan P Sarathi, it was held that "Legally recoverable debt not proved as the complainant could not prove source of income".
25. In view of the above decision, once cheque is ad mitted, the statutory presumption would automatically fall in favour of the complainant that the alleged cheque was issued for the discharge of an existing legally enforceable debt or liability against the accused and the burden will shift on to the accused to rebut the same.
26. In (2009) 2 SCC 513 it was held that "Standard of Proof required for rebuttal does not require proof beyond reasonable doubt Something probable has to be brought on record . Burden of proof can be shifted back to the complaint by producing convincing circumstantial evidence.
27. When accused has admitted that cheque ExP1 relates to her account so also her signature there in, under Section 139 of the Act, a rebuttable presumption shall be raised that cheque in question was issued regarding discharge of legally enforceable debt. Now it is for the accused to rebut the said presumption by probablising the defense taken by her.
SCCH24 14 C.C.3072/202228. In order to probablise the defense taken by the accused, she got examined herself as Dw1 and two witnesses are examined as DW.2 and Dw.3 and got marked documents as per Ex.D1 to D20. At the cost of repetition when accused has admitted her signature in the disputed cheque presumption can be drawn u/Sec/ 118 and 139 of N I Act. Now in the light of the evidence given by the complainant and accused the court has to assess whether accused has proved her defence with preponderance of probability.
29. At the risk of repetition, it is the case of the complainant that he lend Rs.12,00,000/ to the accused in between January 2018 to March 2019 and towards discharge of said loan the cheque in question has been issued by the accused and same is dishonored.
30. The complainant who got examined as PW.1 has deposed that earlier he was working in Private Company and now he is running hand loom business. The accused nowhere during the cross examination of PW.1 has disputed the avocation of Pw1. Further nowhere either in the reply notice or during the cross examination of PW.1 or in the evidence of the DW.1 to DW.3 the accused has disputed the financial status of the SCCH24 15 C.C.3072/2022 complainant to lend sum of Rs.12,00,000/ to her. It is the definite case of the complainant that he lend hand loan of Rs.12,00,000/ to the accused by way of cash. It is true that, PW.1 during his cross examination has deposed that by withdrawing money from the bank he has lend Rs.12,00,000/ to the accused in between January 2018 to March 2019 and that he has document to that effect and he has no objection to produce the said document. It is true that PW.1 has not produced the said document. The learned counsel for accused during the course of argument has much highlighted the aforesaid evidence of PW.1 of his not produced the document. But this court is of the opinion that when accused nowhere has disputed the financial capacity of the complainant to lend Rs.12,00,000/ and no whisper has been made questioning the financial status of the Pw1 where ever in the present proceedings except in the written argument, under such circumstances the question of proving the financial status of the complainant does not arise.
31. The learned counsel for accused during the course of argument has referred the judgment reported on 2011 Crl.L J 552 between Amazad Pasha Vs. H N Lakshman. In the said case, accused alleged to have taken loan from complainant. Complainant has not placed any evidence to show that he had financial capacity to lend SCCH24 16 C.C.3072/2022 substantial amount of Rs.4,50,000/. Admittedly, no document evidence in the loan transaction has come in to existence. Under the circumstances court has acquitted the accused on the ground that complainant has failed to his financial condition.
32. In the said case, the accused has seriously disputed the financial status of the complainant to lend sum of Rs.4,50,000/. Under the given set of fact such an observation was made.
33. In ILR 2009 Kar. 2331 between B Indiramma Vs. Sri. Eshwar. In the said case the complainant has admitted that the transaction was held between her husbands and accused. Dispute as to factum of delivery of cheque by the accused to the complainant . It was held that "when the very factum of delivery of cheque in question by the accused to the complainant and its receipts by the complainant from the accused itself is seriously disputed by the accused, his admission in his evidence that the cheque in question bears his signature would not be sufficient proof of the fact that he delivered the said cheque to the complainant and the latter 'received it from the former' so as to raise the presumption U/s 139 of N.I Act. In order to raise presumption in favour of the complainant, he has to establish the fact that it was SCCH24 17 C.C.3072/2022 he who 'received' from the accused the cheque in question and, it is only after this fact is established by the complainant, presumption can be raised that the said cheque was issued by the accused towards discharge of whole or in part of any debt or other liability.
34. Coming to the case in hand, the accused nowhere has disputed the financial status of the complainant. Now at this juncture, it would be relevant to refer here the judgment reported in Sunitha Vs. Sheela Antony, 2020 SCC OnLine Ker 1750, wherein, the principles laid down by the Hon'ble Supreme Court of India in the above mentioned judgments have been summarized and it has been held as follows:
"The complainant has no obligation, in all cases under Section 138 of the Act, to prove his financial capacity. But, when the case of the complainant is that he lent money to the accused by cash and that the accused issued the cheque in discharge of the liability, and if the accused challenge the financial capacity of the complainant to advance the money, despite the presumption under Section 139 of the Act, the complainant has the obligation to prove his financial capacity or the source of the money allegedly lent by him to the accused. The complainant has no initial burden to prove his financial capacity or the source of the money. The obligation in that regard would arise only when his capacity or SCCH24 18 C.C.3072/2022 capability to advance the money is challenged by the accused."
35. If the principles laid down in the aforesaid judgment are applied to the case in hand, when the accused has not disputed the financial capacity of the complainant, there is no obligation casted on the complainant to prove the same.
36. So far the defence taken by the accused regarding her issued disputed cheque to D Babu and mis usual of the said cheque by the complainant in collusion with his brother K V Raghavendra is concerned, it is vehemently argued by the learned counsel for accused by referring the evidence of PW.1 that, the PW.1 having stated that he lend Rs.12,00,000/ to the accused has pleaded ignorance as to the place at which accused resides, her designation in the Railway Department and also her income. It is further submitted by the learned counsel that the PW.1 has admitted that herself and her father were introduced to the complainant by his brother K V Raghavendra and that the accused and her father are not directly known to the complainant and that they have been recommended by one Muniraju and Sriram who were working in Railway Department. Hence, according to the learned counsel, the complainant is a set up party by his SCCH24 19 C.C.3072/2022 brother for the purpose of filing complaint with an intention to extract money from the accused and that K V Raghavendra is the master mind behind the complaint who misused the blank signed cheque of the accused.
37. If the evidence of PW.1 is perused, it is true that PW.1 has deposed that accused and her father have been introduced to him by his brother K V Raghavendra, Muniraju and Sriram and that he came to known of the accused in the month of MarchApril 2017 and the Pw1 pleaded ignorance of the place of residence and income of the accused. But if the cross examination of PW.1 is read in whole, he has clearly deposed that accused and her father are working in Railway Department and that they are Government employee. When complainant was aware of the occupation of the accused and her father and when he very well knows that they are Central Government Employees, the mere fact that PW.1 feigned ignorance of the income of the accused and their place of residence it would not go to the root of the case of the complainant. Further when accused, her father, the brother of complainant and Muniraju and Sriram are all the employees of South Western Railways, the mere fact that the accused was introduced by the brother of complainant and aforesaid Muniraju and Sriram it would also not come in the way of the case of complainant.
SCCH24 20 C.C.3072/202238. As per the case of accused, during the year 2012 they have availed housing loan of Rs.30,00,000/ from Karnataka Bank for the purchase of house property at Kadugodu and since they did not pay the monthly installments, possession of the property was taken hence they challenged the said order before the DRT proceedings and to comply the stay order passed in DRT proceedings, they borrowed Rs.2,00,000/ from D Babu, at that time as a security they have issued disputed cheque, that since D Babu was arrested during the year 2017 by taking advantage of the said situation, the brother of the complainant misused the said cheque through the complainant. In order to substantiate the said contention the accused has relied upon Ex.D1 to Ex.D13, Ex.D18 and Ex.D19. Ex.D1 to Ex.D8 is the photographs. The accused relied upon the said document to prove that the brother of complainant, D Babu and Muniraju are the close associates and they colluded together and misused the cheque given as security to the aforesaid D.Babu.
39. Though the PW.1 has identified his brother K V Raghavendra in the aforesaid photographs but has not identified the picture of D Babu and Muniraju. As observed supra, the PW.1 has admitted that Muniraju is known to him and that through Muniraju and Sriram and SCCH24 21 C.C.3072/2022 his brother K V Raghavendra he came to know of the accused. But PW.2 has categorically deposed that D Babu is not known to him, hence only he denied identifying D Babu in the Ex.D1 to Ex.D8. As observed in the previous paras, even if it is presumed for a while for the sake of discussion that K V Raghavendra and D.Babu are close associates but unless and until it is proved by the accused that she had given disputed cheque to D Babu, any amount of evidence given by the accused to prove the close association of K V Raghavendra with D Babu would assist the case of the accused in any manner.
40. Ex.D9 is the sale deed dated 07022012 executed in respect of property situated at Kadugodi in favour of accused and her father. Ex.D10 is the sanction order passed by the Karnataka Bank dated 12012012 sanctioning loan of Rs.30,00,000/ to the father of accused, for the said loan accused and her sister ie., DW.2 stood as guarantor. Ex.D11 is the demand notice issued by the Karnataka Bank Limited under Sec.13 (2) of Securitization & Reconstruction of Financial Assets and Enforcement of Security Interest Act (SERFASE) 2002. Ex.D12 is the possession notice issued by Karnataka Bank and Ex.D13 is the order passed by DRT in S.A No.93/2017.
SCCH24 22 C.C.3072/202241. On perusal of the aforesaid document, it reveals that the father of accused had borrowed Rs.30,00,000/ from the Karnataka Bank and since he failed to clear the loan, the bank authorities have taken possession of the property purchased under Ex.D9 under SERFASE ACT 2002. Challenging the said order, the accused filed petition before the DRT and the Hon'ble DRT was pleased to stay the proceedings subject to the condition of depositing Rs.3,00,000/. Ex.P18 is the publication made in Indian Express dated 31072020 regarding D Babu of his involvement in job scam in South Western Railway Division.
42. But to consider the aforesaid document, the accused at first has to prove that her father had borrowed Rs.2,00,000/ from D Babu to deposit the amount before DRT in compliance of order in S.A No.93/2017.
43. So far as the defence taken by the accused regarding her father availed hand loan of Rs.2,00,000/ from D Baby to deposit Rs.3,00,000/ before DRT in S.A No.93/2017 is concerned, though in the evidence of accused she has stated so, but if the reply notice as per Ex.D10 given by the accused dated 23032021 is perused, nowhere she has stated anything about the hand loan of Rs.2,00,000/ availed by her father from SCCH24 23 C.C.3072/2022 D Babu and the fact of disputed cheque issued by her as security for the alleged loan amount, instead at para no.13 of the reply notice she has stated that the two cheques mentioned in the notice ie., disputed cheques in the present case and another cheque which is the subject matter in one more case filed against the accused pending before this court were misplaced long ago from her residence and same pertains to the year 2013 and that she has ignored them as they did not surface all these years and she surprised to know that the said two cheques reached the hands of complainant after 8 years and that the said unsigned blank cheque were missing from 2013. It is further stated in the reply notice at para no.10 that she has stopped using cheques of Syndicate Bank in the year 2013 itself and all the payments due subsequent to 2013 are made by her through digital platforms and that in the year 2013 itself she has addressed letter to Ganga Nagar Branch to stop payment of the cheque from her account.
44. At the cost of repetition, the accused nowhere in her reply notice has stated about the disputed cheque issued by her to D Babu as security for the amount of Rs.2,00,000/ received by her father in the year 2017. If really, her father had borrowed Rs.2,00,000/ from D Babu in the year 2017 and if really cheque in question SCCH24 24 C.C.3072/2022 was issued by her as security in the year 2017 then nothing prevented the accused from pleading the said fact in the reply notice and she could have taken the said defence at an earliest point of time in her reply notice itself. Further if really, accused had stopped using cheque of Syndicate Bank in the year 2013 and had given stop payment instruction to the said bank in the year 2013 then the question of her issuing disputed cheque to the said D Babu during the year 2017 does not arise. The accused having not taken such defence in the reply notice now has taken the defence in her evidence without there being any basis. If really there is truthness in the defence of the accused then at an earliest point of time in her reply notice she could have taken such defence.
45. If the cross examination of DW.1 to DW.3 is perused, it can be gathered that Dw.1 is working as commercial clerk in Indian Railway Department. DW.3 was also working in Indian Railway in mechanical Department till January 2020. The DW.1 joined the service in the year 2007. It is admitted by DW.1 that she holds respectable position in the said Department and she is responsible officer in the said Department. It is admitted by DW.1 that since she is an educated lady holding responsible post she use to sign any document after reading and having understand the contents of the SCCH24 25 C.C.3072/2022 document and that cheque is one of the important document and she use to sign the cheque after understanding the contents of cheque. It is further admitted by DW.1 that she being Government employee, the Railway Service Conduct Rules 1966 would apply to her and that at the time of purchasing the property or borrowing money one has to obtain prior permission from the Department. Though accused has contended about the purchase of house property during the year 2012 as per Ex.D9 and also contended about loan of Rs.2,00,000/ borrowed by her father from D Babu and the accused stood as guarantor to the said loan transaction but admittedly neither her father nor accused has obtained prior permission from the Department. It is admitted by DW.1 that apart from complainant she had also borrowed money from others and in that regard as per the order of the court; deduction from her salary so also from the salary of her father is made. It is deposed by DW.1 that even though her father has borrowed money from D Babu and for the said loan she has issued disputed cheque as security to D Babu but both of them have not obtained prior permission from the Department. The DW.1 deposed that she has no knowledge of the necessity of obtaining prior permission from the Department. But court is not accepting / agreeing with the said evidence of DW.1 for the reason that DW.1 joined SCCH24 26 C.C.3072/2022 the service during the year 2007 and her father was also in the same Department till the month of January 2020. Both of them having held responsible post in the Railway Department and having served in the said Department for a long time it is not believable version of the DW.1 in saying that she was ignorant of the aforesaid procedure of obtaining prior permission from the Department. It is relevant to state here that DW.3 the father of accused during his cross examination has gone to the extent of denying the necessity of obtaining prior permission from the Department at the time of purchase of property or availing loan from the third party. Being an employee of Railway Department having served for long time it is an absurd answer given by the DW.3 that himself and his daughter being Central Government Employees there is no necessity for them to obtain prior permission from the Department at the time of entering in to a sale transaction or loan transaction and that Railway Service Conduct Rules would not apply to them.
46. It is admitted by DW.1 that they have no document with them to prove that they had loan transaction with D Babu. It is the defence of the accused in her examination in chief that out of the loan amount of Rs.2,00,000/ received by her father entire amount with interest except Rs.25,000/ was repaid to D Babu and SCCH24 27 C.C.3072/2022 that on 30032017, 07082019, 04022020 and 0403 2020 they have paid sum of Rs.36,000/ each to D Babu through google pay of DW.2 towards repayment of principal and interest and that in the first week of July 2020 when they had been to office of D Babu for payment of balance amount of Rs.25,000/and to collect two blank signed cheque at that time they came to know about the involvement of D Babu in job scam and his being arrested by the police.
47. As per the own evidence of Dw.1 , the alleged loan amount of Rs.2,00,000/ was borrowed by DW.3 and the cheque of DW.1 was given as security. At first the accused has not proved the loan of Rs.2,00,000/ borrowed by her father from D Babu. If really DW.3 had borrowed Rs.2,00,000/ from D Babu in the month of March 2017, then by that time DW.3 was in service and nothing prevented the DW.3 from issuing his cheque as security to the alleged loan transaction of him with D Babu. Further Dw.2 is no way related to the alleged loan transaction of DW.3 with D Babu. When DW.1 and DW.3 were in service in Railway Department, nothing prevented them from repaying the alleged loan amount of Rs.2,00,000/ to D Babu from their account. Though DW.1 has deposed that as per Ex.D15 to Ex.D17 sum of Rs.36,000/ each was transferred to the account of SCCH24 28 C.C.3072/2022 D Babu through google transaction of DW.2 towards principal and interest, but if the said documents are perused, sum of Rs.36,000/ each on three occasions was transferred towards interest. The Dw.1 during her cross examination has admitted that Ex.D15 to Ex.D17 is the document pertaining to DW.2 and that the said documents are not related to her and that Ex.D15 to Ex.D17 are towards the interest amount. When Dw.1 herself has admitted that Ex.D15 to Ex.D17 are not related to her and when the said document relates to the transaction towards interest and the said payment were made by DW.2, under such circumstances there is no reason to believe that the said payments were made by DW.2 on behalf of accused and her father to the said D Babu. It is further relevant to state here that when the father of accused had borrowed money from D Babu and as on the date of alleged loan transaction with D Babu, the father of accused was in service there is no question of accused issuing cheque as security towards the alleged loan transaction of her father with D Babu. So far as Ex.D15 to Ex.D17 are concerned, it appears that DW.2 had separate transaction with D Babu and towards the said transaction the amount as per Ex.D15 to Ex.D17 are transferred to D Babu under google transaction. The Dw.1 at one breath has deposed that she has no objection to prove the loan transaction which her father had with SCCH24 29 C.C.3072/2022 D Babu and cheque in question issued by her to D Babu as security for the alleged loan transaction, but another breath she deposed that as f now they have not in touch with D Babu.
48. It is relevant to state here that the accused having taken the defence that her father had availed loan of Rs.2,00,000/ from D Babu during the year 2017 and that she had issued disputed cheque towards the said loan transaction as security, but if Ex.D19 i.e., acknowledgment issued by SHO, Magadi Road Police Station is perused, wherein the accused alleging that her father during the year 2017 had borrowed Rs.5,00,000/ from D Babu and that they have repaid the principal and interest and they have paid Rs.1,00,000/ commission amount to D Babu at the time of his lending money and that she has issued cheques at the time of borrowing money and said cheques have been misused by complainant and her father has lodged complaint before Magadi Road Police Station. Hence, the accused has taken contradictory defense regarding the amount of loan borrowed by her father from D Babu . It is not made it clear by the accused as to how much is the amount borrowed by her father from D Babu whether it is Rs.2,00,000/ as stated in her evidence in chief or SCCH24 30 C.C.3072/2022 Rs.5,00,000/ as stated in her complaint before Magadi Road Police station.
49. It is the defence taken by the accused that after D Babu absconded due to job scam, the brother of the complainant has approached her and demanded Rs.12,00,000/ stating that he is in possession of blank cheque which were handed over to D Babu while her father took hand loan from D Babu in the year 2017. It is nowhere stated when exactly K V Raghavendra the brother of the complainant has approached and demanded for Rs.12,00,000/ illegally. Further though during the cross examination of PW.1 suggestion was posed to the PW.1 to the effect that resisting the said Act of K V Raghavendra and complainant, the accused has lodged complaint before Rajajinagar PS and that on the basis of the complaint lodged by her, the Rajajinagar Police have called K V Raghavendra and complainant and enquired them, but to prove the said fact the accused has not produced any document. Hence, there is no reason to believe that she had lodged complaint against K V Raghavendra and complainant for their alleged act of misuse of disputed cheque. If really K V Raghavendra and complainant tried to extract Rs.12,00,000/ from the accused illegally by using disputed cheque and in that regard they have given threat to the accused, nothing SCCH24 31 C.C.3072/2022 prevented the accused from lodging complaint against the complainant and her father.
50. If the evidence in chief of Dw.1 is perused, at para no.14 she herself has deposed that on 27072020 she was called over phone by Subramanya police and instructed to pay the amount to K V Raghavendra and complainant. The aforesaid fact clearly proves that the complainant and his brother had lodged complaint against accused and her father for their act of not returning the loan amount. It is after the complainant lodged the complaint before Subramanya Police Station to the aforesaid effect, as counter blast the accused has lodged the complaint against complainant and his brother before Magadi Road PS on 29072020. If really complainant and his brother had misused the disputed cheque nothing prevented the accused from lodging the complaint earlier to the complaint lodged by complainant before Subramanya Police.
51. It is further relevant to state here that the accused in her evidence in chief has deposed that they have paid entire loan amount of Rs.2,00,000/ with interest pending balance amount of Rs.25,000/. But in the Ex.P19 they have stated that they have repaid entire loan amount of Rs.5,00,000/ with interest.
SCCH24 32 C.C.3072/202252. Though the accused in her evidence has deposed that since 2013 she is not using cheque and she is making digital payment, but against to the very evidence of accused, she herself has deposed that during the year 2017 she had given disputed cheque to D Babu as security. When accused stated to have not used cheque relating to Syndicate Bank since 2013, the question of her issuing disputed cheque to D Babu as security in the year 2017 would not arise.
53. The learned counsel for complainant has relied upon Ex.P9 i.e., loan agreement dated 25012018 executed by accused in favour of complainant. It is relevant to state here that the accused has admitted her signature in the Ex.P9 . During the cross examination of DW.1 since she has admitted her signature in the said loan agreement, same was marked as Ex.P9 . The DW.1 has deposed that she has signed the blank paper and that at the time of her signing the Ex.P9 there was no writing in it. It is nowhere stated by the accused who has obtained her signature in the blank paper and at what occasion she has signed the said document. The Dw.2 and DW.3 in their evidence at para no.3 have deposed that at the time of D Babu collected two blank cheques from accused he even had obtained signature of the accused on SCCH24 33 C.C.3072/2022 white papers. But if the evidence of accused is perused, nowhere she has stated about her signature obtained by D Babu on blank white paper. It is after Ex.P9 was marked through DW.1, the father and sister of the accused improvised their version by deposing that D Babu had obtained the signature of accused on white paper. If really D Babu had obtained the signature of accused on white paper nothing prevented the accused from deposing the said material fact in her evidence. Hence, the evidence given by DW.2 and Dw.3 to the aforesaid effect is not anything but an improvement made in their evidence to nullify the Ex.P9.
54. Ex.P9 is engrossed on a stamp paper of Rs.200/ where in the name of accused finds place as second party and both the pages contain the signature of accused. The Dw.1 during her cross examination has admitted that stamp papers are not available in market and that it is available only in the concerned Department and that while purchasing stamp paper the name of the purchaser, the value of stamp paper, the purpose for which stamp paper was purchased etc., have to be mentioned in the stamp paper.
55. At the risk of repetition, Dw.1 has deposed that she is holding responsible post in the Railway Department SCCH24 34 C.C.3072/2022 and that she uses to sign any document after going through the contents of the same. Under such circumstances, the accused being an educated lady having held responsible post would not venture to sign blank cheque or to sign blank white paper so as to dispute Ex.P1 and Ex.P9.
56. The learned counsel for accused argued much by referring the recitals of disputed Ex.P9 that in the Ex.P9 there is only mention about payment of Rs.3,50,000/ by the complainant but the case of the complainant is that he lend Rs.12,00,000/ to the accused. Hence, Ex.P9 goes against to the case of the complainant. But if Ex.P9 is read in whole wherein it is clearly recites that the accused has received sum of Rs.3,50,000/ by cash and acknowledged the receipts through the agreement and she requested the complainant for additional loan amount of Rs.8,50,000/ and accused promised to return and repay entire amount within two years from the date of agreement with 1% interest. As observed supra, Ex.P9 was executed on 25012018. It is the specific case of the complainant that accused borrowed sum of Rs.12,00,000/ from him between January 2018 to March 2019. Hence, the recitals of Ex.P9 clearly supports the case of the complainant to prove that accused in all had borrowed SCCH24 35 C.C.3072/2022 sum of Rs.12,00,000/ on different dates from the complainant.
57. The learned counsel for accused by referring the evidence of PW.1 and documents produced by him has vehemently argued that as per the complaint the cheque of the Syndicate Bank has been collected by the complainant after notification of bank merger and when the Syndicate Bank was not existed, as such no offence is made out u/Sec.138 of N.I Act and complainant has not given reason why the cheque of the non existing bank was accepted and not demanded for the cheque of the bank in which Syndicate Bank was merged. Hence, according to the learned counsel adverse inference can be drawn against the case of the complainant.
58. The learned counsel at this juncture has referred the judgment in Archan Singh Gautham Vs. State of UP application u/Sec. 482 no9536/2024. In the said case, bank returned the cheque in question because the cheque was invalid as the cheque in question was issued from the account maintained in Allahabad Bank on 02 062023 though the Allahabad Bank had already merged into the Indian Bank on 01042020 and the cheque of the Allahabad was valid till 30092021. Under the given set of fact it was observed that if any invalid cheque is SCCH24 36 C.C.3072/2022 presented before the bank and same was dishonored, then no liability u/Sec. 138 of N I Act would be attracted.
59. Coming to the case in hand, as per the case of the complainant the disputed cheque ie., post dated in question was issued in the month of August 2020. The cheque was presented on 20012021 and it was dishonoured on 22012021 for the reason payment stopped by the drawer.
60. It is not in dispute that the Syndicate Bank was merged with Canara Bank on April 1, 2020. As per Article Syndicate Bank customers were told that their cheque book was valid until June 30, 2021. Thereafter customers were advised to apply for new cheque book.
61. When disputed cheque was issued in the month August 2020 and it was presented on 21012021 and when, even after merger of Syndicate Bank with Canara Bank the cheque of Syndicate Bank was valid till June 30, 2021, under such circumstances by referring the observation made in the judgment relied by the counsel for accused it can be said that the cheque in question is valid as on the date of issuance of cheque so also as on the date of presentation of cheque. Further the cheque in question was not dishonoured for the reason invalid SCCH24 37 C.C.3072/2022 cheque but for the reason payment stopped by the drawer. Hence, there is no merit in the argument canvassed by the learned counsel for accused in saying that cheque in question is not valid and is not enforceable under law.
62. So far as the argument canvassed by the learned counsel for accused regarding suppression of reply notice by the complainant is concerned, it is true that the PW.1 during his cross examination has denied the reply notice given by the accused, but during the cross examination of DW.1, the counsel for complainant themselves have confronted the reply notice and got it marked as Ex.P8 . The averments of the reply notice are contradictory to the defence taken by the accused in her evidence. When reply notice is addressed to the counsel for complainant and same is served to the counsel for complainant, the court cannot view the evidence given by PW.1 seriously so far as his denial of service of reply notice because he may not be aware of the service of reply notice to his counsel. Hence, the question of suppressing the truth by the complainant does not arise.
63. It is true that the PW.1 during his cross examination has deposed that they have not obtained any document from the accused at the time of his lending money to the accused, but he himself has confronted SCCH24 38 C.C.3072/2022 Ex.P9 i.e., loan agreement to the accused and argued before the court that it was executed by accused admitting the loan transaction. As per the own case of the complainant, the accused has borrowed sum of Rs.12, 00,000/ in between January 2018 to April 2019. During the said period Ex.P9 is got executed. Though PW.1 has deposed that he has not obtained any document from the accused at the time of lending money but Dw.1 herself has admitted her signature in the Ex.P9 and nowhere she has stated on what occasion she has signed the Ex.P9.
64. So far as non disclosure of loan transaction in the IT returns is concerned, as per Sec.271 D of Income Tax Act if the party failed to comply with the provision of Sec. 269 SS of Income Tax Act penal provision would attract. If a person takes are except any loan or deposit in contravention of provision of Sec.269 SS he shall be liable to pay by way of penalty. Hence, merely on the ground that complainant has failed to disclose the loan transaction of Rs.12,00,000/ in his IT returns that alone would not be sufficient to acquit the accused.
65. As discussed above, in the facts of present case, issuance of cheque to complainant and signature of the accused in the cheque having been established, a SCCH24 39 C.C.3072/2022 presumption shall be raised under Sec.138 of N.I. Act that, cheque was issued in discharged of debt or liability.
66. The material placed on record and defence taken by the accused reveals that, she has set up a false story only with an intention to escape from the liability to pay the amount covered under the cheque.
67. Hence much discussion is not required in this case to hold that; accused is guilty of the offence punishable under Sec.138 of N.I. Act, because, issuance of cheque in favour of complainant has been admitted by the accused. Therefore, it is clear before the court that, accused has committed the offence under Sec.138 of N.I. Act. Accordingly, I answer point No.1 in the affirmative.
68. POINT No.2 : In the light of the reasons on the point No.1, I proceed to pass the following;
ORDER
Acting under Sec.255(2) of Cr.PC, the
accused is found guilty of the offence
punishable under section 138 read with
section 142 of NI Act and she is sentenced to pay fine of Rs.4,60,000/ (Rupees Four Lakh SCCH24 40 C.C.3072/2022 Sixty Thousand only) out of which Rs.4,55,000/ shall be paid as compensation to the complainant under Sec.395 of BNSS and Rs.5,000/ shall be payable to the State.
In the event of default in payment within a period of 3 months, the accused shall be convicted to simple imprisonment for a period of 6 months.
The bail bond of accused and that of surety stands cancelled.
Office to furnish the copy of this judgment, free of cost to the accused.
(Dictated to the stenographer directly on computer, corrected and then pronounced by me in open court, on this the 2nd day of September 2024.) (ROOPASHRI) XXII Addl.SCJ & ACJM Bengaluru.
:ANNEXTURE:
LIST OF WITNESSES EXAMINED ON BEHALF THE COMPLAINANT P.W.1 : Sri K.V. Manjunatha SCCH24 41 C.C.3072/2022 LIST OF DOCUMENTS MARKED ON BEHALF COMPLAINANT:
Ex.P.1 : Original Cheque given by accused dated 19022021 Ex.P.1(a) : Signature of the accused.
Ex.P.2 : Copy of Bank memo
Ex.P.3 : Copy of legal notice
Ex.P.4 : Postal receipt
Ex.P.5 : Courier receipt
Ex.P.6 : Postal Acknowledgment
Ex.P.7 : Postal cover
Ex.P.8 : The replay notice issued by
accused
Ex.P.9 : Loan agreement
LIST OF WITNESSES EXAMINED BY THE ACCUSED DW.1 N. Anitha DW.2 Pushapalatha DW.3 G. Narayana Swamy LIST OF DOCUMENTS MARKED ON BEHALF OF ACCUSED:
Ex.D1 to 8 Certified copies of photos
Ex.D9 Certified copy of Sale deed dated
07022012
Ex.D10 Certified copy of Sanction order
issued by Karnataka Bank LTD
Ex.D11 Certified copy of Letter dated
25102016
Ex.D12 Certified copy of Notice dated
06012017
Ex.D13 Certified copy of order sheet in
S.A.93/2017
Ex.D14 Certified copy of statement of Karnataka
Bank
SCCH24 42 C.C.3072/2022
Ex.D15 to 17 Certified copies of Message pages regarding amount sent to D.Babu through phone pay Ex.D18 Certified copy of The new Indian Express newspaper dated 31072021 Ex.D19 Certified copy of Acknowledgment issued by the Magadi Road P.S., Ex.D20 Certified copy of Certificate under Sec.65B of the Indian Evidence Act.
XXII Addl. SCJ & ACJM Bengaluru.