Bangalore District Court
Against The Accused For The Offence vs Has Lent Said Loan Amount To The Accused ... on 17 March, 2020
1 CC.6450/2018 (J)
IN THE COURT OF THE XV ADDL CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY.
Dated this the 17th day of March-2020
Present: Subhash.B.Hosakalle.
B.Com.,LL.B (Spl)
XV Addl.C.M.M., Bangalore.
Judgment U/s.355 of the Cr.P.C. 1973.
1.Sl.No.of the case CC.No.6450/2017
2.Name of the Complainant: Smt.Suhasini Umesh Sharma,
W/o.Mr.Umesh Sharma,
(Ret. Bank employ),
Aged about 64 years,
R/at No.16, Sriram Sadan,
1st Main, 3rd Cross,
Amarajyothi Housing Society,
Sanjaynagar,
Bangalore - 560 094.
3.Name of the accused: Smt.Priya P.
Aged about 39 years,
R/o.No.2, Vinayaka Residence,
3rd main road, AECS Layout,
Nagashettihalli, Sanjaynagara,
Bangalore- 560 094.
And also at:
Aishwarya Beauty Parlor
Proprietor,
6/B Rajahamsa Complex,
Amarjyothi Layout,
Anjaynagar Main Road,
Banglore - 560 094.
4.The offence complained of U/s.138 of Negotiable
: Instruments Act.
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5.Plea of the accused: Pleaded not guilty.
6.Final Order: Acting U/s.255(2) Cr.P.C.,
accused is Convicted.
7.Date of final Order 17th day of March-2020.
***
This complaint is filed U/Sec.200 of Cr.P.C., by the
complainant against the accused for the offence
punishable U/Sec.138 of the Negotiable Instruments Act,
1881.
The facts in brief is as under.
2. According to the complainant the accused has
approached her in the month of December 2015 and
sought hand loan of Rs.3 lakhs. The complainant
considering the long time relationship between her and the
accused has lent said loan amount to the accused in the
month of December 2015. As per complainant she has
paid loan of Rs.85,000/- to the accused by way of cheque
bearing No.314003 and balance loan amount of
Rs.2,15,000/- has paid by way of cash to the accused. The
accused has agreed to repay the said loan amount within 6
to 8 months. Accordingly the accused towards discharge of
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the liability has issued a cheque bearing No.382031 for
Rs.3 lakhs, dated 01.11.2017, drawn on Dena Bank,
Nagashettihalli branch, Bengaluru-94. The complainant
for encashment purpose has presented said cheque
through her Banker by name Corporation Bank Ltd.,
Sanjaynagar branch, Bengaluru-94. The said cheque was
returned unpaid for the reason "Funds Insufficient". The
said Bank has issued return memo on 14.11.2017. This
fact was brought to the notice of the accused who
requested to the complainant to represent the said cheque
for second time for encashment purpose. The complainant
trusting the words of the accused again presented the
cheque on 5.12.2017. For the second time also the cheque
was dishonored with an endorsement of "Funds
Insufficient". Accordingly the Bank has issued dishonor
memo dated 6.12.2017. This fact was again brought to the
notice of the accused who requested to the complainant to
represent the cheque for encashment purpose for the third
time. The complainant believing the words of the accused
has represented the cheque for third time on 9.1.2018 for
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encashment purpose. Again for the third time also the
cheque was dishonored for the reason "Funds Insufficient".
The concern Bank has issued dishonor memo on
10.1.2018. The legal notice dated 24.1.2018 through
registered post was issued to the accused at her two
addresses. The notices were returned unserved. According
to the complainant despite of the service notice the
accused failed to pay the cheque amount and thereby
committed an offence punishable U/s.138 of the N.I.Act. It
is prayed to punish the accused.
3. After the institution of the complaint it has been
registered it in PCR No.2834/2018 and on the basis of
materials cognizance of the offence has taken against the
accused and registered the criminal case against her and
issued summons to the accused. In response to the
summons the accused put her appearance through her
learned counsel and got enlarged on bail. The prosecution
papers were supplied to the accused and her plea was
recorded. The accused denied the plea and claimed for
trial.
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4. During trial the complainant was examined as
PW-1 and on her behalf one independent witness by name
H.Shivashankar Shenoy PW-2 and the complainant has
got marked Ex.P.1 to P.9. As the defence evidence the
accused was examined as DW-1 and got marked Ex.D.1 to
D.7.
5. I have heard the argument of both learned
counsels, perused the entire materials and the following
points would arise for my consideration.
1. Whether the complainant proves that
the Accused towards the discharge of
legally enforceable debt/liability of
Rs.3,00,000/- has issued cheque and
on its presentation for encashment
purpose it was dishonored with an
endorsement of "Funds Insufficient"
and thereby accused committed an
offence punishable U/Sec.138 of N.I.
Act, 1881 ?
2. What order?
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6. My answers on the above points for
consideration are as under.
Point No.1 : In the Affirmative
Point No.2 As per final order for the following:-
REASONS
7. Point No.1:- I have noticed the provision of
Section 118(a) 138 and 139 of the Act., 1881. and the said
provisions are hereby extracted and they reads thus:-
"118. Presumptions as to
negotiable instruments. - Until the
contrary is proved, the following
presumptions shall be made:-
(a) of consideration - that every
negotiable instrument was made or
drawn for consideration, and that
every such instrument, when it has
been accepted, indorsed, negotiated
or transferred, was accepted,
indorsed, negotiated or transferred
for consideration
"139. Presumption in favour of
holder.- It shall be presumed, unless
the contrary is proved, that the
holder of a cheque received the
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cheque of the nature referred to in
section 138 for the discharge, in
whole or in part, of any debt or other
liability."
8. On plain perusal of the provision of Section
118(a) and 139 of the N.I.Act., as extracted herein above, it
can be seen that initially the presumptions constituted
under those two provisions are favours the complainant.
However, it is open to an accused to raise a defence to
rebut the statutory presumptions. An accused can raise a
defence wherein the existence of legally enforceable debt or
liability can be contested.
9. It is also well established that, an accused for
discharging the burden of proof placed upon him under a
statute need not examine himself. He may discharge his
burden on the basis of the materials already brought on
record. An accused has constitutional rights to maintain
silence. Standard of proof on part of the accused and that
of the prosecution in a Criminal case is different. The
prosecution must prove the guilt of an accused beyond all
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reasonable doubt, the standard of proof so as to prove a
defence on the part of an accused is "Preponderance of
probabilities".
10. Under the light of the provisions extracted
herein above, I have gone through the complaint and the
evidence placed on record by the parties to the complaint.
The complainant has been examined as PW-1, who filed
her evidence affidavit on oath as her examination-in-chief
and wherein she has been deposed in accordance with the
contents of the complaint. The complainant in support of
her claim has got examined one independent witness as
PW-2 and she got marked Ex.P.1 to P.9. In the case on
hand the accused has produced her defence evidence. The
accused has got examined herself as DW-1 and she got
marked Ex.D.1 to D.7.
11. The Ex.P.1 is the cheque dated 01.11.2017 for
Rs.3 lakhs and Ex.P.1(a) is the accused signature on the
cheque, Ex.P.2 to P.4 are the three dishonor memos dated
14.11.2017, 6.12.2017 and 10.1.2018, Ex.P.5 is the office
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copy of the legal notice dated 24.01.2018, Ex.P.6 and P.7
are the two postal receipts for having sent the legal notice
to the accused through registered post, Ex.P.8 and P.9 are
the two postal envelopes.
12. On perusal of the exhibits which discloses that
the complainant has presented the cheque for encashment
purpose for three times well within the time. Further the
exhibits discloses that the complainant has caused
statutory notice to the accused well within the time.
Further the materials discloses that the complainant has
caused statutory notice to the accused through the
registered post. In support of said aspect the complainant
has produced two postal receipts which were marked at
Ex.P.6 and P.7. As per materials the statutory notice
caused to the complainant through registered post were
returned unserved for the endorsement fund on both
envelopes. It is pertinent to note that, as per materials
placed on record the complainant has caused statutory
notice to the accused at her correct address given in the
cause title of the complaint. At this stage, I have gone
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through the examination-in-chief of the DW-1/Accused
wherein she has not at all disputed her evidence given in
the cause title of the complaint. Thus, it is crystallized
that the complainant has caused statutory notice to the
accused at her correct address. Accordingly the
presumption as envisaged U/s.27 of the General Clauses
Act is come into play in favour of the complainant. No
doubt the said presumption is rebuttable one. But in the
case on hand the accused has not produced any materials
on record to rebut her address as given in the cause title of
the complaint. Thus, it can be presumed that the
complainant has caused statutory notice to the accused at
her correct address. Further it is pertinent to note that the
order-sheet dated 1.3.2018 discloses that the complainant
has instituted this complaint well within the time.
13. As already it has been stated that in the case on
hand the accused has entered into the witness box and got
examined herself as DW-1 and in support of her oral
evidence she got marked Ex.D.1 to D.7. I have perused the
same. The Ex.D.1 is the Certified copy of the Parlour
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products document, Ex.D.2 is the certified copy of Forensic
Mobile phone examination report dated 2.1.2019 issued by
Trust Labs Forensic Services, Bengaluru, Ex.D.3 is the
certified copy of the certificate U/s.65-B of the Indian
Evidence Act filed by Trust Labs Forensic Services
Bengaluru, Ex.D.4 is the certified copy of report by Trust
Labs Forensic Bengaluru, Ex.D.5 is the certified copy of
acknowledgement issued by Police Sub Inspector of
Sanjayanagar Police Station, Bengaluru, Ex.D.6 is the
certified copy of police complaint dated 4.6.2017 and
Ex.D.7 is the certified copy of police endorsement issued by
Sanjayanagar Police Station, Bengaluru.
14. The complainant/PW-1 in her examination-in-
chief has been deposed in accordance with averments
made in the complaint. The PW-2 has deposed in support
of case of the complainant. The accused has also produced
her defence evidence and who has been examined as DW.1.
This DW-1 in her examination-in-chief has deposed that
she know the complainant who used to supply beauty
parlour items to the accused. She further deposed that
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she has borrowed loan of Rs.1 lakh from the complainant
and for which she has paid interest @ 10% per month. She
further deposed that she has repaid said loan amount in
full to the complainant and again for the second time she
has borrowed loan of Rs.1 lakh from the complainant.
This DW-1 further deposed that she gave her three blank
cheques and blank On Demand Promissory Note and
consideration receipt to the complainant and apart from
that she has also given signed blank stamp paper to the
complainant. She further deposed that after repayment of
entire loan of Rs.1 lakh she has asked to the complainant
to return those documents but complainant failed to do so.
15. I have perused the cross-examination of the
DW-1 wherein it has been elicited that the accused has
availed loan of Rs.2 lakhs from the complainant and as
against the said loan of Rs.2 lakhs the accused has repaid
Rs.1 lakh to the complainant with interest. Further it has
been elicited that the accused for the first time had availed
loan from the complainant in the month of September
2016 and further it has been elicited that again in the
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month of October 2016 the accused had availed from the
complainant for the second time. This DW-1 in her further
cross-examination has stated that in the month of July -
August 2017 she repaid loan to the complainant.
16. During further cross-examination of DW-1 it
has been elicited from her mouth that, the complainant
gave loan of Rs.2 lakhs to her in the month of September
and October 2016. This DW-1 further stated that the
complainant had drawn said amount of Rs.2 lakhs from
her Bank account and disbursed to her. DW-1 in her
further cross-examination has stated that she received
loan of Rs.25,000/- from the complainant by way of
cheque on 19.10.2016. She denied the suggestion that on
27.10.2016 again she availed loan of Rs.75,000/- from the
complainant. On the other hand the DW-1 in her further
cross-examination has stated that she was in need of
money to pay advance sale consideration in respect of site
situated near Devanahalli and for that reason she took
loan of Rs.1 lakh from the complainant. She further stated
in her cross that complainant has collected her three
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signed blank cheques from her and also collected three
demand promissory note and consideration receipt and
also stamp papers. She denied the suggestion that she
owe loan of Rs.8 lakhs towards the complainant and on the
other hand she has stated that she availed loan of Rs.2
lakhs only from the complainant and out of that already
she has repaid Rs.1 lakh to the complainant and she is in
due of Rs.1 lakh only towards the complainant. This DW-1
during her further cross-examination has stated that she
gave three blank signed cheques to the complainant and
also gave three Demand Promissory Notes and
consideration receipts and also three stamp papers to the
complainant.
17. On perusal of the cross-examination of the DW.1
as narrated herein above it is crystallized that the
complainant and accused are known to each other and the
accused has availed loan from the complainant and issued
signed cheque in favour of the complainant. Further it is
crystallized that the accused unequivocally admits the
issuance of cheque and her signature on it. In the case on
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hand the cheque has been marked at Ex.P.1 for a sum of
Rs.3 lakhs dated 01.11.2017 and accused signature has
been marked at Ex.P.1(a). Now the burden shifts on the
accused to rebut the statutory presumption as envisaged
U/s.118(a) and 139 of the N.I.Act. In this connection, the
accused has placed her reliance upon the certified copy of
Ex.D.2 which is Forensic mobile phone examination report
dated 2.1.2019 issued by Truth Labs Forensic Services,
Bengalur and she also placed reliance upon the certified
copy of Ex.D.3 certificate U/s.65-B of the Indian Evidence
Act issued by the said Trust labs. For the reasons
mentioned herein below, the said piece of evidence would
not come into the aid of the accused towards reversing the
statutory presumption as envisaged U/s.118(a) and 139 of
the N.I.Act. The first reason is that as per materials the
accused has got created the said documents during the
pendency of the case. The second reason is that there is no
judicial order regarding referring the alleged mobile to the
said alleged handwriting agency and the third reason is
that the accused failed to examine the author of said
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exhibits. Therefore, the Ex.D.2 to D.4 have no evidentiary
value and they would not come into the rescue of the
accused to rebut the statutory presumption as constituted
U/s.118(a) and 139 of the N.I.Act.
18. Further it is pertinent to note that during her
cross-examination of the PW-1 nothing has been elicited
from her mouth that there was no existence contract of
debt between the complainant and the accused at the given
point of time and the accused has not at all issued the
cheque towards the discharge of legally enforceable
debt/liability as claimed under the said instrument. No
doubt the defence of the accused was that there were other
financial transactions between her and the complainant
and in connection of those alleged transactions three blank
signed cheques, On Demand Promissory Notes and stamp
papers were handed over to the complainant. It is
significant to note that no material evidence has been
placed on record by the accused to prove that there were
other transactions between the accused and the
complainant other than the transactions involved in the
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case on hand. Under the circumstances, there is no
probability in the defence of the accused that there were
other financial transactions between her and the
complainant and in respect of those alleged transactions
she issued three signed blank cheques, on demand
promissory notes and stamp paper. Further it is pertinent
to note that nothing has been elicited from the mouth of
PW-2 to disbelieve and discard his examination-in-chief.
This PW-2 has supported the case of the complainant.
19. Since the accused has admitted issuance of
cheque and her signature on it which attracts the ratio laid
down by the Hon'ble Supreme Court of India in its
decisions reported in (2001) 6 SCC Page No.16 - Hiten P.
Dalal V/s.Bratindranath Banerjee, (2009) SCC Page
No.513 - Kumar Exports V/s.Sharma Carpets and (2010)
11 Page No.441 - Rangappa V/s.Sri.Mohan. With due
respect, I have perused the said decision and wherein it
has held that the cheque shall be presumed to be for
consideration unless and until, the Court forms a belief
that the consideration does not exist or considers the non
18 CC.6450/2018 (J)
existence of consideration was so probable that a Prudent
man would under no circumstances of the case, act upon
the plea that the consideration does not exist. In the case
on hand already it has been stated herein above that, the
accused is failed to prove that there was no existence of
consideration at the given point of time and she has not at
all issued the instant cheque towards discharge of legally
enforceable debt/liability of Rs.3 lakhs as claimed under
the Ex.P.1. Thus, it is crystallized from the evidence that
the accused is failed to rebut the presumption that the
cheque was not issued for any debt or other liability.
20. The another defence raised by the accused was
that, she has issued her signed blank cheque and
accordingly the complainant misused the same and got
filed the instant complaint. This defence also does not
survive for consideration in view of the decisions of the
Hon'ble Supreme Court of India reported in Crl. Appeal
Nos. 230-231 of 2019 (SLP) (Crl) Nos.9334-35 of 2018)
Beersingh V/s.Mukeshkumar. With due respect I have
gone through the said decision and extracted the
19 CC.6450/2018 (J)
paragraph No.37 and 38 of the said Judgment and those
paragraphs reads thus:-
37. A meaningful reading of the
provisions of the Negotiable
Instruments Act including, in
particular, Sections 20, 87 and 139,
makes it amply clear that a person
who signs a cheque and makes it
over to the payee remains liable
unless he adduces evidence to rebut
the presumption that the cheque
had been issued for payment of a
debt or in discharge of a liability. It
is immaterial that the cheque may
have been filled in by any person
other than the drawer, if the cheque
is duly signed by the drawer. If the
cheque is otherwise valid, the penal
provisions of Section 138 would be
attracted.
38. if a signed blank cheque is
voluntarily presented to a payee,
towards some payment, the payee
may fill up the amount and other
particulars. This in itself would not
20 CC.6450/2018 (J)
invalidate the cheque. The onus
would still be on the accused to
prove that the cheque was not in
discharge of a debt or liability by
adducing evidence.
21. Thus on assessment of entire evidence as per
ratio laid down in the decisions stated supra, it is
crystallized through the evidence that, the complainant has
proved that the accused has issued the Ex.P.1 the cheque
towards discharge of legally enforceable debt/liability of
Rs.5 lakhs. Further it is crystallized that the accused
failed to rebut the statutory presumption as envisaged
U/s.118(a) and 139 of the N.I.Act. Hence, the accused is
found guilty ford the offence punishable U/s.138 of the
N.I.Act. In view of the aforesaid reasons, I proceed to
answer point No.1 in the Affirmative.
22. Point No.2 : In view of the reasons assigned on
Point No.1, I proceed to pass the following:-
21 CC.6450/2018 (J)
ORDER
As per the provisions of Sec.255(2) Cr.P.C. the accused is hereby sentenced for the offence punishable u/s.138 of NI Act, 1881. The Accused shall liable to pay fine of Rs.3,10,000/- (Rupees Three Lakhs Ten Thousand Only.) On deposit of fine amount the complainant is entitled for compensation of Rs.3,05,000/- (Rupees Three Lakhs Five Thousand only). The remaining balance amount of Rs.5,000/- is to be forfeited to the state.
In default of payment of the fine amount accused shall undergo simple imprisonment for six months.
The personal bond executed by the accused is hereby stands cancelled and cash surety of Rs.2,500/- furnished by the accused shall be forfeited to the state after expiry of appeal period.
22 CC.6450/2018 (J) Copy of the judgment shall be furnished to the accused at free of cost.
(Dictated the Judgment in part to the Stenographer and remaining part of the Judgment dictated directly on the computer, transcript thereof is computerized and printout taken by her, is verified and then pronounced by me in Open Court on this the 17th day of March-2020.) (Subhash.B.Hosakalle) XV Addl. CMM., Bangalore.
ANNEXURE Witnesses examined for the Complainant:-
PW.1 Smt.Suhasini Umesh Sharma. PW.2 H.Shivashankar Shenoy Documents marked for the Complainant:-
Ex.P.1 Cheque
Ex.P.1(a) Signature of the accused.
Ex.P.2 to P.4 Three Bank endorsements.
Ex.P.5 Legal Notice.
Ex.P.6 & P.7 Two Postal Receipts.
Ex.P.8 & P.9 Two Postal Envelopes.
Witnesses examined For Defence:-
DW-1 Priya Documents marked for Defence:-
Ex.D.1 Certified copy of the Parlour Products.
Ex.D.2 Laboratory Lab given report. Ex.D.3 Certified copy of the Truth Lab given certificate.
Ex.D.4 Certified copy of the Truth Lab given certificate.
23 CC.6450/2018 (J) Ex.D.5 Sanjayanagar P.S. given Acknowledgement.
Ex.D.6 Complaint given to the Police Station Ex.D.7 Police endorsement.
(Subhash.B.Hosakalle) XV Addl.CMM., Bangalore.
24 CC.6450/2018 (J) 17.03.2020 (Judgment Pronounced in the Open Court Vide Separate Order sheet ORDER As per the provisions of Sec.255(2) Cr.P.C. the accused is hereby sentenced for the offence punishable u/s.138 of NI Act, 1881. The Accused shall liable to pay fine of Rs.3,10,000/- (Rupees Three Lakhs Ten Thousand Only.) On deposit of fine amount the complainant is entitled for compensation of Rs.3,05,000/- (Rupees Three Lakhs Five Thousand only). The remaining balance amount of Rs.5,000/- is to be forfeited to the state.
In default of payment of the fine amount accused shall undergo simple imprisonment for six months. 25 CC.6450/2018 (J) The personal bond executed by the accused is hereby stands cancelled and cash surety of Rs.2,500/- furnished by the accused shall be forfeited to the state after expiry of appeal period.
Copy of the judgment shall be furnished to the accused at free of cost.
(Subhash.B.Hosakalle) XV Addl.CMM., Bangalore.
26 CC.6450/2018 (J)