Bangalore District Court
Sunil Kumar vs M/S Nextel Pharma And Mousmi Aliyas ... on 3 April, 2025
CC.No.9496/2023
KABC030161992023
Presented on : 20-04-2023
Registered on : 20-04-2023
Decided on : 03-04-2025
Duration : 1 years, 11 months, 13 days
IN THE COURT OF THE XVI ADDITIONAL CHIEF
JUDICIAL MAGISTRATE, BENGALURU CITY
Dated: This the 3rd day of April 2025
Present: Smt.Tejaswini K.M., B.A.L. LL.M,
XVI Addl.C.J.M., Bengaluru City.
CC. No.9496/2023
Sri.Sunil KUmar
S/o Sri Sajjan Raj
Aged about 49 years
No.65, Arun Complex,
Dr.D.V.G.Road, Basavanagudi,
Bengaluru - 560004.
....Complainant
(By Sri H.Manjunath, Advocate)
Versus
2 C.C.9496/2023
1. M/s Nextel Pharma
Represented by Authorized
Signatory
Smt.Mousmi @ Mousmi Choudary
W/o Sri.Swastinath Singh,
Aged about 37 years.
2. Smt.Mousmi @ Mousmi
Choudhary
W/o Sri.Swastinath Singh,
Sl No.1 & 2 address:
No.561, 12th Cross, 8th Main,
Delmia Circle,
J.P.Nagar 2nd Phase,
Bengaluru - 560078.
Also at:
Exxon Pharma
D/No 1837, 1st Floor,
Jamna Mansion, 18th Main Road,
Jayanagar 4th T Block,
Bengaluru - 560041.
.... Accused
(By Sri.K.Suresh Desai., Advocate)
Offence complained : U/Sec.138 of Negotiable
Instrument Act.
Date of commencement
of evidence : 17.04.2023
3 C.C.9496/2023
Date of closing evidence : 19.02.2024
Opinion of the Judge : Accused found guilty
Offence complained : U/Sec.138 of Negotiable
Instrument Act.
Opinion of the Judge : Accused found guilty
JUDGMENT
This case is registered against the accused for the offence punishable U/s 138 of Negotiable Instruments Act.
2. Factual matrix of the complainant's case is as under:
It is stated that the complainant is a money lender and he knows the accused. The accused has approached him for hand loan of Rs.5 lakhs on 20.11.2021. Accordingly, the complainant has lent Rs.5 lakhs by way of transferring the money to the account of the accused on 24.11.2021 and in this regard the accused had executed 4 C.C.9496/2023 on demand pronote and consideration receipt on 24.11.2021. The accused has agreed to repay the loan with interest @ 24% per annum within one year. However, the accused has not repaid the amount as agreed and after repeated demands on 24.01.2023 the accused has issued cheque bearing No.7340004 for Rs.6,40,000/-, drawn on M/s State Bank of India, JP Nagar 4th Phase, Bengaluru for principle and interest. When he presented the cheque it returned with an endorsement as 'Funds Insufficient' on 24.01.2023. Thereafter, the complainant got issued a legal notice on 28.01.2022 demanding the accused to make payment of cheque amount within 15 days, but it was returned on 01.02.2023 with an endorsement as 'not claimed'. However, the accused not repaid the amount. Hence the complainant has constrained to file the present complaint. 5 C.C.9496/2023
3. After receiving the complaint, this court has meticulously gone through the documents and affidavit filed along with it and then took cognizance of the offence punishable U/sec.138 of Negotiable Instruments Act and ordered for registration of the compliant as P.C.R.
4. Sworn statement of the complainant was recorded and marked 26 documents as Ex.P-1 to P-26. As there were sufficient materials to constitute the offence, this court has proceeded to pass an order for issuing process against the accused.
5. In pursuance of summons, accused has appeared through her counsel and applied for bail. She was enlarged on bail. Then the substance of accusation was read over to the accused in the language known to her, for which she pleaded not guilty.
6 C.C.9496/2023
6. As per the direction of Hon'ble supreme court in "Indian Bank Association V/s Union of India and others reported in (2014)(5) SCC 590, this court treated the sworn statement of the complainant as complainant evidence and posted matter for cross-examination of PW.1. The counsel for the accused has fully cross- examined PW.1.
7. The statement of accused as contemplated under the provisions of Section 313 of Cr.P.C has been recorded vide order dated 21.03.2024 and the incriminating evidence as such forthcoming against the accused in the evidence of PW.1 and the documents has been read over and explained to the accused in the language known to her. She denied all incriminating evidence. The accused has not led any evidence. The accused examined as DW.1 and got marked Ex.D1 to D18.
7 C.C.9496/2023
8. I have heard the arguments of the learned counsel for both side. The Learned counsel for accused has filed written arguments. The Learned Counsel for both side have also filed memo with citations. I have gone through the citations and perused the oral and the documentary evidence placed on record.
9. Points that arise for my consideration are as under:
1. Whether the complainant proves that the accused towards discharge of her liability issued a cheque bearing No.734004 dated 24.01.2023 for Rs.6,40,000/-, drawn on State Bank of India, J P Nagar Branch, Bengaluru in favour of complainant, on presentation of the same for encashment, it was dishonored for "Funds Insufficient" in the account maintained by the accused, then in-spite of issuing demand notice to the Accused and in complying with statutory requirement under Negotiable Instrument Act, Accused 8 C.C.9496/2023 did not repay the cheque amount, thereby she has committed an offence punishable U/s 138 of Negotiable Instruments Act?
2. What Order?
10. My Answer to above points are as under:-
Point No.I :- In the Affirmative,
Point No.II :- As per the final order for
the following....
REASONS
11. POINT NO.I:- In nutshell, case of the
complainant is that he has lent loan of Rs.5 lakhs to the account of the accused on 24.11.2021 and the accused has agreed to repay it within one year with interest @ 24%per annum and executed promissory note. In discharge of the said loan, the accused has issued cheque in question. However, it got dishonoured for the reason 'Funds insufficient'. Despite of giving notice, the accused has not repaid the amount. Hence the present complaint. 9 C.C.9496/2023
12. To substantiate his case the complainant stepped into witness box and got examined as PW.1. He has got marked Ex.P1 to P26. He has produced a cheque issued by accused and the same is marked as Ex.P-1, the signature of the accused is marked as Ex.P-1(a), copy of bank memo is marked as Ex.P-2, copy of demand notice dated: 28.01.2023 is marked as Ex.P-3, copies of postal receipts are marked as Ex.P-4 to P-7, copies of returned notices are marked as Ex.P-8 to P-11, postal covers are marked as Ex.P12 to P-15, copies of postal receipts are marked as Ex.P-16 & P-19, copies of postal acknowledgments are marked as Ex.P-20 to P-23, Copy of on demand promissory note dated 24.11.2021 is marked as Ex.P-24, copy of consideration receipt is marked as Ex.P-25 and complaint is marked as Ex.P-26.
13. Advocate for complainant has relied on the citations reported in (2024) BC 288 (SC) in between 10 C.C.9496/2023 Ajitsinh Chehuji Rathod V/s State of Gujarat and another, (2024) BC 499 (HP) in between Jagdev Singh V/s Sudhir Nichal, (2024) BC 157 (Chh) in between Usha Khare V/s Harpal Singh Chhabda, (2024) BC 27 (KAR) in between Sudhakar Reddy C.B. V/s Pushpa and LAWS (KER) 2004-2-30 in between P.N.Sallam V/s P.J.Thomas, I have gone through these case laws.
14. Defense of the accused is as follows:
She has borrowed gold loan of Rs.7,50,000/- from the complainant. She has also borrowed car loan from the complainant. While giving car loan amount, the complainant has taken few cheques from her for security. The complainant was harassing her for repayment of the loan, as soon as possible, as such she gave complaint to the police. That time police have asked to resolve the dispute in the Court. Thereafter, the complainant has misused her cheque and filed this false case. She has 11 C.C.9496/2023 repaid Rs.2,50,000/- by way of cash and Rs.1,26,000/- to the account of the complainant towards gold loan. There is no loan transaction between herself and the complainant as alleged in the complaint. The cheque which was given for vehicle loan security has been misused and false case is filed against her. She is not the proprietor of the M/s Nextel Pharma. Hence, on these grounds, accused prays to acquit her from this case.
15. Advocate for accused has relied on the citations reported in (2022) 6 SCC 426 in between ICDS Ltd V/s Beena Shabeer and another and ILR 2007 KAR 3368 in between Nagaraja Upadhya V/s M.Sanjeevan, I have gone through these case laws.
16. Negotiable Instruments Act provides for some presumption in favour of the complainant i.e., Section 118 reads as here: - "That every negotiable instrument was made or drawn for consideration and that every such 12 C.C.9496/2023 instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration".
17. Further Sec 139 of the Negotiable Instruments Act provides for presumption in favour of a holder. It reads as here: - "It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in sec 138, for the discharge, in whole or in part, or any debt or other liability."
18. Combined reading of above said sections raises a presumption in favour of the holder of the cheque that he has received the same for discharge in whole or in part of any debt or other liability. However, it is settled principle of law that the presumption available u/s 139 NI Act can be rebutted by the accused by raising a probable defense.
13 C.C.9496/2023
19. The complainant has reiterated the contents of complaint in his chief-examination. During cross- examination by the counsel for the accused PW.1 has deposed that he is money lender and has got license to do the said business. He knows the accused from 3-4 years and he has given Rs.5 lakhs to the account of the company of the accused and she is the proprietor of the accused No1 company. He denied the suggestion of the counsel for the accused that the accused is not the proprietor of the accused company. He has deposed that the accused has executed promissory note while taking the loan. But not issued the cheque at the time of lending the loan. He has deposed that the accused has not pledged any gold with him. He has imposed 24% interest on the loan. He deposed that the accused has also taken vehicle loan from him. He deposed that he has collected few cheques from the accused relating to the vehicle loan, 14 C.C.9496/2023 but the cheque in question is issued pertaining to the loan transaction mentioned in the complaint. The contents of the cheque are in the handwriting of the accused. He admits that the accused has paid Rs.1,26,000/- through cheque bearing No.734005 to him, he volunteerily deposed that it doesn't relates to the transaction in dispute. He denies that he has taken 3 cheques in advance pertaining to the loan and he voluntaries that accused has issued cheques in respect of vehicle loan. He further deposed that he does not know whether the accused has lodged complaint against him. He denied that he has sent goondas to the house of the accused. He deposed that the cheque has been dishonoured for the reason 'Funds Insufficient'. He deposed that he is not aware that the account of the accused was blocked for want of KYC updates. He admits that cheque in dispute does not reflects in Ex.D1 ie account statement. He admits 15 C.C.9496/2023 that the accused has issued cheque bearing No.434005 for Rs.1,26,000/- for vehicle loan and cheque bearing No.734003 was issued in respect of other loan transaction. He has deposed that accused is due for Rs.6,40,000/- to him. He denied that the accused has borrowed gold loan from him by pledging her gold ornaments. He denied that the cheques which were given for security purpose of vehicle loan has been misused by him. He denied that the accused does not owe to pay the cheque amount to him.
20. Percontra, the accused stepped into witness box and got examined as DW.1. She has deposed in her evidence that she has borrowed loan of Rs.7,50,000/- from the complainant. She has also borrowed car loan from the complainant. While giving car loan, the complainant has taken few cheques from her, for security. The complainant was harassing her for repayment of the loan 16 C.C.9496/2023 as soon as possible, as such she gave complaint to the police. That time police have asked to resolve the dispute in the Court. Thereafter, the complainant has misused her cheque and filed this false case. She has repaid Rs.2,50,000/- by way of cash and Rs.1,26,000/- transferred to the account of the complainant towards gold loan. She further deposed that there is no loan transaction between herself and the complainant as alleged in the complaint. The cheque which was given for vehicle loan security has been misused and false case is filed against her. She is not the proprietor of the M/s Nextel Pharma.
21. During cross-examination by the counsel for the complainant, DW1 has deposed that cheque belongs to her account and it bears her signature. But the remaining contents are not written by her. She deposed that she has not given stop payment instructions to the bank. She has deposed that she has not received any message from the 17 C.C.9496/2023 bank regarding the dishonour of cheque in question. The counsel for the accused has asked whether she given any notice to the complainant seeking back her cheque in question, DW1 deposed that she did not know that the complainant had her cheque with him. She deposed that she had not given complaint alleging that the complainant has misused her cheque. She denied that she is the proprietor of Nextel Pharma. She deposed that since the license expired, she is no longer the proprietor of the said pharma. She admits that earlier she was proprietor of the said pharma. She admits from 16.12.2013 till now, there is an account of Nextel Pharma in SBI Bank and she has not closed it. She deposed that bank has not intimated her that her cheque has been dishonoured. When she enquired in the bank they told none of her cheque has been presented to bank. She deposed that the address shown in the legal notice at Ex.P3 is correct and she did not has any problem to give 18 C.C.9496/2023 reply to the said notice. She admits her signatures at Ex.P4 & P5. DW1 further deposed that she has seen those documents for the first time in the Court as such she has not challenged those 2 documents. She admits that on 24.11.2021 through cheque bearing No.459208 the complainant has transferred Rs.5 lakhs to her account as per Ex.P25. She deposed that she has pledged her gold and taken loan of Rs.7,50,000/- from the complainant.
22. DW1 further deposed that she has repaid the vehicle loan, but not taken NOC from the complainant. She admits that her vehicle is still in the name of complainant. She deposed that she has given complaint through e-mail as per Ex.D7. She admits that she has not filed any civil or criminal case against the complainant so far. She repaid the vehicle loan in the April-May 2018. She deposed that she had taken loan of Rs.5,25,000/- and repaid it with an amount exceeding Rs. 10 lakhs. She 19 C.C.9496/2023 admits that there is no connection between the loan shown in the complaint and vehicle loan of Rs.5,25,000/-. When it is suggested whether she had any document to show that she has repaid Rs.5 lakhs to the complainant, she has deposed that as per Ex.D4 she had paid Rs.1,62,152/-. She admits that the said amount has been deposited to the account of Zaimax Pharmaceutical Company and not to the complainant. She does not has any document to show that she has taken gold loan from the complainant in the year 2021 and she has no document to show that she had repaid it.
23. She has not filed any civil case regarding her gold loan despite of repayment. She admits that there is no reference about the gold loan and vehicle loan in Ex.D8 and D9. She denied that she had not taken any gold loan from the complainant by pledging her gold. She pleaded ignorance to the suggestion that her father-in-law by 20 C.C.9496/2023 name Surendranath Singh was lookafter the Nextel Pharma. She also pleaded ignorance the suggestion that said Surendranath Singh has been convicted in the cheque bounce case and also in contempt petition. She does not know that her father-in-law look after the Nextel Pharma as per Ex.D17. She deposed that she has not surrendered her proprietorship rights regarding Nextel Pharma. She denied that she has not challenged the bank memo as per Ex.P2 and she has answered voluntarily when she enquired, bank manager told that cheqhe has been presented to the bank. She admits that there is no seal and signature of the bank in Ex.D2 and there is postal acknowledgment to show that Ex.D2 has been reached to bank. She denied that she had obtained Ex.D1 by colluding with the bank manager. She deposed that from 21.04.2023 she has not given KYC details to bank. When it is suggested that since she has not updated the KYC 21 C.C.9496/2023 details, the bank has not intimated about the dishonour of the cheque to her, for which she answered that the bank shall intimate it to her. She further deposed that she received message from the bank that she had to give documents for KYC updates. She denied that for escaping from the liability of payment of the cheque to the complainant, she is giving false evidence before the Court. She denied that she has created Ex.D18.
24. I have meticulously gone through the pleading, evidence and documents placed on record. In the beginning the accused has denied that she is the proprietor of Nextel Pharma. In her evidence also she deposed she is not the proprietor and said firm isn't existed. The accused herself has produced copy of the order regarding cancelling of the licence granted to M/s Nextel Pharma at Ex.D17. On perusal of the same, it is evident that accused is the owner of Nextel Pharma. It is 22 C.C.9496/2023 the sole proprietorship firm. Therefore, it is proved that she is proprietor of said pharma. The said order is passed on 27.09.2021. The complainant is no way concerned to the said Nextel Pharma. Therefore, unless the accused disclosed and informed the complainant that the license granted to Nextel Pharma had been cancelled, the complainant could not have possibly known that the said firm had been closed.
25. Admittedly the cheque in question is of the account of Nextel Pharma. The accused contends that as the said firm is no more existed, she is not liable for the amount mentioned in the cheque. It is materiel note here that Cheque belongs to Nextel Pharma. The counsel for the accused has argued that since the license was cancelled, the pharma's account became inactive and as the accused did not update the KYC details, the account was subsequently deemed to be closed. Therefore, the 23 C.C.9496/2023 accused cannot issue the cheque in question on 24.01.2023, as alleged by the complainant. Additionally, the counsel for the accused has contended that since the firm is no longer operational, the accused cannot be made a party to this case, and this case case is not maintainable against the accused.
26. The counsel for the accused further argued that since the bank issued a certificate stating that there is no record of the cheque being presented to the account of the accused, the bank memo at Ex.P2 is invalid. She also contended that cheques bearing Nos. 734005, 734004, and 734006 were provided as security for a vehicle loan to the complainant, and one of those cheques was misused. Additionally, the counsel argued that according to the RBI circular, if a cheque is dishonoured, it must be reflected in the accused's account statement and in the system. Since it is not complied, it is evident that the cheque is not at all 24 C.C.9496/2023 presented to the bank and Ex.P2 ie memo has been created and produced and based on the same, the present complaint is not maintainable. Therefore, benefit of doubt prays to be given to the accused.
27. Percontra, the counsel for the complainant has argued that the complainant has not entered into any gold loan transaction with the accused. There is no proper evidence regarding payment of either vehicle or gold loan as alleged by the accused. The accused has not updated KYC details, as such she might have not received the message regarding dishonour of cheque. The accused has not given reply to the demand notice of the complainant. Therefore, prays to convict the accused.
28. As previously stated, it is evident that the accused is the proprietor of Nextel Pharmas, the cheque belongs to the said pharma. She also admitted her 25 C.C.9496/2023 signature at Ex.P1 cheque and on Ex.P24 & P25 i.e. promissory note and consideration receipt.
29. The Honorable Supreme Court of India in "Triyambak S Hegde v Sripad" (2022) 1 SCC 742 while relying upon the the constitution bench judgment of Basalingappa v Mudibasappa (2019) 5 SCC 418, under para 14 of its judgment reiterated that "once the cheque was issued and that the signatures are upon the cheque are accepted by the accused, the presumptions undee Sec 118 and 139 of the NI Act arise against the accused. That is, unless the contrary is proved, it shall be presumed that the cheques in question were drawn by the accused for a consideration and that the complainant had received the cheque in question in discharge of debt/liability from the accused."
30. Therefore, as per Sec.118 and 139 of NI Act initial presumption has to drawn infavour of the complainant that cheque was issued in discharge of legally enforceable 26 C.C.9496/2023 debt. The burden lies on the accused to rebut the said initial presumption on the scale of preponderance of probabilities.
31. The complainant contends that he has given loan of Rs.5 lakhs to the accused by way of cheque. The accused has admitted that she has received Rs.5 lakhs through cheque bearing No.459208 of the complainant. Therefore, the complainant has proved that Rs.5 lakhs has been deposited to the account of the accused. The accused contends that she has not taken loan of Rs.5 lakhs as mentioned in the complaint, but she calims to have taken gold loan of Rs.7,50,000/- from the complainant in December 2021 and that time Rs.2,50,000/- was given by way of cash and remaining Rs.5 lakhs was transferred to her account through cheque bearing No.459208.
27 C.C.9496/2023
32. Firstly, initial presumption has been raised in favour of the complainant under sec 118 and 139 of Ni Act that the cheque in question has been issued in discharge of legally enforceable debt, the burden lies on the accused to rebut the said evidence, on the scale of preponderance of probabilities. The accused is the owner of proprietorship concern and well educated lady. Except her self interested testimony regarding the gold loan transaction, she has not at all produced any iota of evidence to show that she has pledged her gold of 252 gms with the complainant and taken loan of Rs.7,50,000/-.
33. The accused is not illiterate person. If she intended to pledge her gold, she had ample opportunity to do so at a recognized bank or a gold lending financial institution. However, she failed to take any proof , when pledging her gold. As there is no evidence to prove the said gold loan same and also as the complainant is denying the said 28 C.C.9496/2023 transaction, for want of evidence, this Court declines to believe that the accused has pledged her gold with the complainant and taken loan of Rs.7,50,000/-.
34. Though the accused has deposed that except her signatures at Ex.P1 ie cheque, P24 and P25 -pronote, remaining details are not filled by her. Recently in ((2019) 4 SCC 197) ie Bir Singh V Mukesh Kumar, Apex court has held that "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 29 C.C.9496/2023 by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted". Thus she is precluded from claiming such defence.
35. The accused has consistently contended that her both she and her husband had previously taken a vehicle loan from the complainant. Even complainant has admitted in his evidence that accused has taken a vehicle loan from him and also 3 cheques of the accused are with him pertaining to the vehicle loan and the cheque in question is not regarding the said loan.
36. In her evidence the accused has stated specifically stated that she had taken gold loan of Rs.7,50,000/-, but neither she has not specified the amount of the vehicle loan she obtained from the complainant, nor has she provided any details regarding when the loan was taken or how much she has repaid. She has deposed while taking car loan, the complainant 30 C.C.9496/2023 had taken few cheques from her for security. But in the entire evidence she has not at all specifically stated that how many cheques were given to the complainant. No prudent person would give signed cheques without keeping record for the same. During cross-examination the complainant has deposed that the vehicle loan is still pending. Percontra, the accused has deposed that she had repaid the entire vehicle loan in April-May 2018 itself. She has also deposed that per EMI she ought to have paid Rs.31,500/-. She does not remember how many installments were given, but she has taken Rs.5,25,000/- and repaid more than Rs.10 lakhs. On perusal of Ex.D3 i.e. account statement of the accused, it appears that from 08.05.2018, there is a payment of Rs.31,200/- to the complainant till 04.12.2019 and thereafter, she had paid Rs.43,200/- till 28.01.2021. If at all she had repaid the amount in April-May 2018, itself why the amount has been 31 C.C.9496/2023 transferred to the complainant till 2021 is not forthcoming. Even if at all she had repaid entire vehicle loan, then what prevented her from seeking back the security cheques alleged to be given to the complainant is not forthcoming. Neither she had given any notice to the complainant seeking back those security cheques nor she filed complaint before the police specifically stating that security cheques which were given towards vehicle loan were not returned by the complainant, till filing of this case. Such inaction of the accused creates suspicion about the whole story regrading security cheques and the vehicle loan repayment.
37. During cross-examination dated 24.10.2024 she had deposed that she has not produced NOC to show that she had repaid the vehicle loan. She admits that her vehicle is still in the name of the complainant. Despite repaying the vehicle loan, the reason why the accused did 32 C.C.9496/2023 not transferred the vehicle to her name remains unexplained.
38. Further in the same cross-examination para No.3 accused has deposed apart from this vehicle loan taken on ford and XUV car, her husband has also taken 2 other loans from the complainant. Therefore, the accused is improvising her evidence and taking different stands regarding the loan transaction made with the complainant by her husband and herself. It is not clear that how many loans, she and her husband have obtained from the complainant , what is the extent of such loan, when they were taken , how much was repaid etc.
39. The accused has deposed that she has paid Rs.2,50,000/- by way of cash and Rs.1,26,000/- through account to the complainant towards gold loan. But during cross-examination the complainant has deposed cheque bearing No.734005 was issued for Rs.1,26,000/- towards 33 C.C.9496/2023 vehicle loan. Therefore, whether Rs.1,26,000/- was adjusted towards vehicle loan or some other earlier loans of the husband of the accused is not forthcoming, but as per the complainant it was towards vehicle loan. In Ex.D7 the copy of the complaint given to the Puttenahalli police station, in page No.2, the husband of accused has mentioned that out of Rs.7,50,000/-, he had paid Rs.1,26,000/- through cheque bearing No.734002 and Rs.2,50,000/- was paid by way of cash on 07.05.2022 and also paid interest of Rs.12,400/- till May 2022. However, to prove that the aforesaid amount has been given to the complainant, no receipt is produced. As per the accused, she has taken gold loan in the month of November 2021 and paid above said amount on 07.05.2022 itself. If she indeed had the financial capacity to repay the gold loan within six months, it remains unclear why she felt the need to pledge such quantity of gold, valued at Rs. 10 34 C.C.9496/2023 lakhs, with the complainant, without obtaining any proof of the pledge. As per Ex.D2 the vehicle loan has been repaid for almost 3 years. Therefore, possibility that the accused had repaid alleged gold loan within a span of 6 months appears to be improbable. Moreover, if we calculate the amount alleged to be paid, it comes to Rs.3,76,000/-. But the accused is asserting that she has taken gold loan of Rs.7,50,000/-.
40. It is further stated in Ex.D7 that on 07.05.2022, the accused and her husband asked the complainant to return her belongings, as she closed the loan. It is materiel to note here that as per her own version, she had taken loan of Rs.7,50,000/-. When such being the case, by paying Rs.3,76,000/-, how can she asked the complainant to close the gold loan is not forthcoming. In subsequent paragraphs at Ex.D7, it is mentioned that she still owes Rs.3,74,000/-. Without making this repayment, why she 35 C.C.9496/2023 asked the complainant to close the loan is not forthcoming.
41. Further in Ex.D7 there is no mention of how many cheques were given to the complainant, the specific cheque numbers that have been presented to the bank, or how many cheques were dishonored. Additionally, it is not forthcoming why the complainant has not taken any action, despite knowing that his security cheques were being presented to the bank. No prudent person would pledge gold ornaments and also give security cheque or signed blank cheques and keep quite for years together and not made any efforts to get back either the gold or the security cheques. The statements of the accused given in the oral evidence and content of Ex.D7 are not tallying with each other. Percontra it is very apparently demonstrating that she had improvised her case, as per convenience.
36 C.C.9496/2023
42. Moreover this Ex.D7 complaint has been sent through e-mail. Subsequently she had sent another complaint on 11.09.2022 as per Ex.D8 wherein she mentioned that no action has initiated based on the earlier said complaint. Though, it is mentioned that police have not taken her complaint for want of jurisdiction, she as an educated person with knowledge of sending complaints through e-mail, she would have been aware that if the local police refused to take the complaint, she had the option to approach the higher police officers. What prevented her to lodge complaint physically to the higher authorities is not forthcoming. There is no clear explanation as to why she did not physically approach the higher authorities. The accused's decision to send the complaint through e-mail to the police website instead of taking more direct action demonstrating her negligent conduct.
37 C.C.9496/2023
43. Yet another defence of the accused is that she had not received message from the bank regarding dishonour of the cheque as per Ex.P2. To substantiate the same, she has produced Ex.D18 i.e. Certificate given by the banker stating that cheque in question was not presented at branch nor it is reflected in current account dated 24.01.2023. The Certificate is given on 15.02.2024 i.e. after filing of this complaint. Mere producing this document is not suffice as the contents of the same has to be proved through it's author. The accused ought to have examined branch manager to establish the contents of Ex.D18. Because same bank official also given memo as per Ex.P2 stating that cheque has been dishonoured for the reason 'funds insufficient' and it bears the seal and signature of the banker. Since there an initial presumption in favour of the complainant, the burden lies 38 C.C.9496/2023 on the accused to establish contrary. Therefore, in order to clarify about the certificate at Ex.D18, which has been taken after one year from the date of presentment of the cheque, she ought to have examine the bank manager. No such endeavor is made by the accused and same is fatal to the defense.
44. Further the accused consistently deposed that account of M/s Nextel Pharma was inoperative and she had not updated KYC details to the bank and there is no transaction in the said account of the Nextel Pharma. It is significant to note here that the accused is well aware that the licence granted to Nextel Pharma has been cancelled in the year 2021 itself. As per her own version, she had knowledge that her cheques were given towards security of vehicle loan to the complainant. Therefore, soon-after cancellation of the licence of Nextel Pharma, it is the duty of the accused to withdraw all the cheques pertaining to 39 C.C.9496/2023 Nextel Pharma and intimate to the stake holders that Nextel Pharma is no more existed and it's account is inoperative and cheques belongs to said firm' cannot be presented to the bank. It was also incumbent on her to intimate the same to her banker and give specific instruction that those cheques cannot be entertained and hand over reaming cheques of said Pharma to bank voluntarily. No such endeavor made by the accused for the reasons best know to her.
45. The cheque in question has been presented on 24.01.2023. In the year 2016 the Nextel Pharma licence has been cancelled. Therefore, she had all opportunity to intimate her banker not to entertain any cheques belonging to Nextel Pharma or she could have give stop payment instructions to her banker or she could have given requisition for closing of the said account. However the accused never acted responsibly, therefore, no fault 40 C.C.9496/2023 can be found with the complainant in presenting the cheque in question to the bank. When she has failed to take steps stated supra, her contention that as firm is nomore existed as such liability cannot be attached to the Firm's account , appears to be mere eye wash tactics and concocted ground to escape from the clutches of law.
46. The complainant has given notice to the accused as per Ex.P3 and address shown in the notice is not at all disputed by the accused and they are returned as 'door lock' as per Ex.D12, D13, D14 and 'not claimed' as per Ex.D15 ie RPAd covers. Therefore, as per Sec.27 of General Clauses Act the notice is deemed to be served.44. K. Bhaskaran vs Sankaran Vaidhyan Balan And Anr reported in AIR 1999 SUPREME COURT 3762, Apex court held that "No doubt Sec 138 of the Act does not require that the notice should be given only by `post'. Nonetheless the principle incorporated in Sec 27 (quoted above) can profitably be imported in a case where the sender has despatched the notice by post 41 C.C.9496/2023 with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non-service. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice. "
47. In C.C. Alavi Haji vs Palapetty Muhammed & Anr (2007) 6 SCC 555, the Hon'ble Apex court has held; "
17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Sec 138 the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Sec 138 of the Act, cannot obviously contend that there was no proper service of notice as under Sec 138 , by ignoring statutory presumption to the contrary under Sec 27 of the G.C. Act and Sec 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation... "42 C.C.9496/2023
48. Therefore, such defense of the accused that notice is not served holds no water. Not responding to notice by way of giving reply is also fatal to the defence.
49. The counsel for the accused has much argued that series of cheques were presented by the complainant and they got dishonoured which shows that the complainant was in possession of security cheques of the accused. First of all there is no proof that the complainant had taken security cheques from the accused. Secondly it is not clear how many cheques of the accused belongs to her savings account were given and how many cheques belongs to Nextel Pharma was given to the complainant. Since the accused herself admitted in her cross- examination that there was earlier transaction with the complainant pertaining to the vehicle loan and her husband has also made couple of transaction with the 43 C.C.9496/2023 complainant, the defense that her security cheques are misused cannot be accepted blindly and same needs to be estalshed with required evidence. Because the purpose of giving cheques for security itself is to ensure the repayment, the security cheques also attracts Sec.138 of NI Act. Moreover, Ex.D17 statement shows that various other cheques belongs to the Nextel Pharma also got dishonoured and charges are imposed in the said account statement. Therefore, defense that the series of cheques were given to the complainant and one of those cheques is the cheque which is produced in the present case cannot be accepted. In the absence of proof regarding the gold loan, pledging of the gold loan or it's repayment or giving blank signed cheques to the complainant for security, the version of the accused cannot be accepted. Percontra, the complainant has proved that he has not lent loan of Rs.5 lakhs by way of account and he has also 44 C.C.9496/2023 corroberated his loan transaction by producing Ex.P24 & P25 i.e. pronote and consideration receipt. The complainant admitted that he had vehicle loan transaction with the accused and her husband and taken cheques towards the said vehicle loan transaction, but he denied that security cheques were misused by him.
50. On appreciation of the entire evidence this Court is of the view that defense appears to be vague and does not transpires the confidence of the Court for lack of evidence. The conduct of the accused regarding denying her proprietorship of Nextel Pharma, not giving reply notice to the demand notice, not giving stop payment instructions, not approached the police officials to lodge the complaint to show that action has been taken against the complainant or not approaching the Court to file private complaint against the complainant at relevant point of time made the entire defense is improbable and 45 C.C.9496/2023 does not trustworthy. Therefore, this Court is of the view that the complainant has proved his case beyond reasonable doubt. Accordingly court proceed to answer POINT NO.I IN THE AFFIRMATIVE.
51. POINT NO.II:- In view of the reasons assigned in above point, it is ample clear that accused has committed the offence punishable u/s 138 of the Act. A bare reading of sec.138 of the NI Act indicates that the purport of sec.138 is to prevent and punish the dishonest drawers of cheques who evade their liability. The Hon'ble Apex Court in its recent decision in M/s. Meters & instrument Pvt Ltd. Vs. Kanchana Mehta reported in (2018)1 SCC-560 held at para 18(ii) that"(ii) The object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged 46 C.C.9496/2023 but is not debarred at later stage subject to appropriate compensation as may be found." In view of the reasons assigned in above point, it is ample clear that accused has committed the offence punishable u/s 138 of the Act.
52. Therefore, having regard to the amount advanced, time from which it is lying with the accused, and keeping in mind the primary object of the provision, this court is of the opinion that, rather than imposing punitive sentence, if sentence of fine is imposed with a direction to compensate the complainant for its monitory loss, by awarding compensation U/Sec.357 of Cr.P.C, would meet the ends of justice. Accordingly, this court proceeds to pass following .....
ORDER The accused is found guilty for the offence punishable U/s.138 of Negotiable Instruments Act.
47 C.C.9496/2023Hence, acting U/sec.255(2) of Cr.P.C, the accused is convicted and sentenced to pay a fine of Rs.8,00,000/- (Rupees Eight Lakhs Only), in default of fine amount, she shall undergo simple imprisonment for Six Months for the offence punishable under section 138 of N.I.Act.
Out of the fine amount collected from the accused, an amount of Rs.7,90,000/- (Rupees Seven Lakhs Ninety Thousand only) shall be paid to the complainant as compensation U/s.357 of Cr.P.C. and the remaining fine of Rs.10,000/- shall be adjusted towards the cost of state expenses.
The bail bonds of the accused shall be in
force till the appeal period is over as
contemplated under the provisions of
Sec.437(A) of Cr.P.C.
48 C.C.9496/2023
Office to supply the copy of the
Judgment to the accused forthwith at free of cost.
(Dictated to the Stenographer, typed by her, corrected by me and then judgment pronounced in the open court on this the 3 rd day of April 2025).
Digitally signed by Tejaswini K
Tejaswini M
KM Date:
2025.04.08
16:42:55 +0530
(Smt.Tejaswini K.M),
XVI ACJM, Bengaluru
ANNEXURE
I. List of witnesses on behalf of complainant:
P.W.1: Sri.Sunil Kumar II. List of documents on behalf of complainant:
Ex.P-1 : Original Cheque. Ex.P-1(a) : Signature of the accused Ex.P-2 : Bank memo.
Ex.P-3 : Copy of Legal notice. Ex.P-4 to 7 : Postal receipts. Ex.P-8 to 11: Returned Notices. Ex.P-12 to 15 : Postal Covers. 49 C.C.9496/2023 Ex.P-16 to 19 : Postal Receipts. Ex.P-20 to 23 : Postal Acknowledgments. Ex.P-24 : Copy of Demand promissory note. Ex.P-25 : Consideration Receipt. Ex.P-26 : Complaint.
III. List of witnesses for the accused:
D.W.1: Smt.Mousmi @ Mousmi Choudary IV. List of documents for accused:
Ex.D-1 : Bank Statement.
Ex.D-2 : Complaint to SBI Bank. Ex.D-2(a) : Postal Receipt. Ex.D-3 & 4 : Bank Statements. Ex.D-5 : Certificate U/Sec.65-B of Evidence Act. Ex.D-6 : Copy of g-mail.
Ex.D-7: Complaint given to Puttenahalli police. Ex.D-8 to 12 : Copies of e-mail Ex.C-13 to 15 : E-mail copies of police notice and acknowledgments.
Ex.D-16 : SBI Account Statement. 50 C.C.9496/2023 Ex.D-17 : Cancellation Order of M/s. Nextel Pharma.
Ex.D-18 : Letter.
Digitally
signed by
Tejaswini K M
Tejaswini Date:
KM 2025.04.08
16:43:05
s +0530
(Smt.Tejaswini K.M ),
XVI ACJM, Bengaluru
51 C.C.9496/2023