Bangalore District Court
Main Road vs Pipeline Main Road on 4 September, 2015
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL UNIT, BENGALURU
DATED THIS THE 4th DAY OF SEPTEMBER, 2015
PRESENT
SRI. C.D.KAROSHI, B.A., LL.B., (Spl)
XIV ADDL. C.M.M., BENGALURU
CASE NO C.C. NO.53150/2013
Sri. R. Umesh
S/o. Ramachandrappa,
Aged about 31 years, R/at No.21, 2nd Cross, 2nd
COMPLAINANT
Main Road, Hosahalli, Vijayanagara, Bengaluru -
560 040.
Smt. Abhinayana .G
W/o. Shivakumar
Aged about 27 years, R/at No.13/1, 1st Cross,
ACCUSED Pipeline Main Road, Vijayanagar, Bengaluru -
560 040.
Also Working at : Vijayanagar Global Hospital,
No.46, Near Main Bus Stand, 17th Cross, M.C.
Road, Vijayanagar, Bengaluru - 560 040
OFFENCE U/s.138 of Negotiable Instruments Act
PLEA OF THE
ACCUSED Pleaded not guilty
FINAL ORDER Accused is convicted
(C.D. KAROSHI)
XIV ADDL. C.M.M., BENGALURU
2 C.C. NO.53150/2013
JUDGMENT
This is a complaint filed by the complainant under Sec.200 Cr.PC against the accused for the offence punishable under Section 138 N.I. Act.
2. In a nutshell it is alleged in the complaint that the accused and her husband are well acquainted with the complainant from the past several years, in the month of May 2012 accused approached and borrowed a sum of Rs.2,50,000/- as loan for financial assistance, towards discharge of the said loan amount accused has issued a cheque bearing No.041704 dated 26.11.2012 for Rs.2,50,000/- drawn on Canara Bank, Sri Adichunchanagiri Mahasamsthana branch, Bengaluru, but when the complainant presented the said cheque for encashment, it came to be returned with an endorsement as "In Operative Account/Dormant Account", accordingly, he got issued a legal notice dated 7.1.2013 through RPAD and Courier. The legal notice sent to the accused through RPAD was returned unserved on 9.1.2013 with a shara "no such person in the address", but notice sent to the office address of the accused through RPAD & Courier was served upon the 3 C.C. NO.53150/2013 accused on 9.1.2013 but she has not paid the cheque amount and thereby committed the offence punishable under Section 138 Negotiable Instruments Act.
3. Records reveal that on receipt of summons, the accused has appeared and got enlarged on bail. Plea for the offence under Section 138 Negotiable Instruments Act recorded, wherein accused pleaded not guilty. In order to prove his case, complainant examined himself as PW.1 and got marked the documents at Ex.P1 to P10. Side of the complainant treated as closed. Statement of the accused as required under Section-313 of Cr.PC recorded. Accused examined herself as DW.1 and got marked the documents at Ex.D1 to D4.
4. Heard the arguments and perused the material on record.
5. The points that arise for my consideration are :-
1) Whether the complainant proves that accused has borrowed a loan and has issued a cheque bearing No.041704 dated 26.11.2012 for Rs.2,50,000/-
drawn on Canara Bank, Sri
Adichunchanagiri Mahasamsthana
branch, Bengaluru towards discharge of existing debt or liability?4 C.C. NO.53150/2013
2) Whether the complainant further proves that when he presented the said cheque for encashment, it returned with an endorsement as "In operative Account/ Dormant Account" and despite receipt of notice also the accused has not complied and thereby committed an offence punishable under Section 138 of Negotiable Instrument Act?
3) What Order?
6. My answers to the above points are as follows:
Point No.1 : In the Affirmative,
Point No.2 : In the Affirmative,
Point No.3 : As per the final order
for the following.......
REASONS
7. Point No. 1: The learned counsel for the
complainant argued that cheque issued by the accused came to be dishonoured for the reason "account is inoperative/Dormant" and despite service of notice on official address accused has neither replied nor paid the cheque amount and also failed to prove the defense set up during the trial. In this regard relying on decisions reported 5 C.C. NO.53150/2013 in AIR 2010 S.C 1898 - (Rangappa V/s. Mohan), (2006) 6 SCC 456 - (D.Vinod Shivappa V/s. Nanda Belliappa) & ILR 2012 KAR 4815 - (Sri Prakash @ Jnanaprakash V/s. Miss T.S.Susheela) he urged that accused is liable to be convicted. Per contra, the learned counsel for the accused also argued that on the relevant date and time of the alleged transaction accused had neither resided in the address shown at Bengaluru nor operated the account or issued the cheque towards payment of the debt. In this regard relying on a decision reported in 2008 (1) Crimes 596 (Kar.) - Nagaraja Upadhya V/s. M.Sanjeevan) prayed for acquittal. I have carefully gone through the entire material on record.
8. In order to prove his case, the complainant examined himself as PW.1 by reiterating entire averments of the complaint stating that cheque given by the accused towards discharge of the debt came to be dishonoured as "account is inoperative/dormant account" and despite receipt of legal notice has not turned up and thereby committed the offence. In order to support his oral testimony, PW.1 got marked the documents Ex.P1 to P10. In the cross-examination of PW.1 the learned counsel for the accused himself elicited about acquaintance of the 6 C.C. NO.53150/2013 complainant with the accused and her husband prior to the marriage, monthly income of the complainant as well as advancement of loan of Rs.2,50,000/- to the accused. Further though he admits that the ink used for signature is different from that of ink used for writing the contents of the cheque, but he has specifically denied that accused is not due to pay any amount. So except these aspects nothing worth has been elicited.
9. In order to rebut the case of the complainant, accused examined herself as DW.1 stating that she does not know the complainant - Umesh and she never borrowed loan from him. Further states that, she left Bengaluru in the year 2009 and thereafter came back in the month of July 2012 and residing in main pipeline area. Further states that while she was returning to the house from global hospital at about 9.00 p.m her husband's friends came there, restrained her and demanded money stating that her husband borrowed the loan, for that she lodged complaint before the Jayanagar Police. Further states that her account came to be closed in the year 2010 itself, but her husband took ten blank signed cheques for purchasing the two wheeler he did not purchase and when she received summons then only 7 C.C. NO.53150/2013 came to know that he gave the above stated cheque to the complainant. In order to support her oral testimony, DW.1 got marked the documents Ex.D1 to D4. But in her cross- examination she has categorically admitted the fact that Ex.P1-cheque has been issued on the account maintained by her and signature thereon belongs to her only. Further admits that she has neither given missing complaint nor gave stop payment instructions to the bank or took legal action against her husband for misuse of cheque in question. In such circumstances this court has to appreciate the documentary evidence along with oral evidence of the parties.
10. It is pertinent to note here that in the case on hand though accused has disputed her acquaintance with the complainant, but admits issuance of cheque as well as signature thereon belongs to her only. It is the specific case of the complainant that she gave in all ten blank signed cheques to her husband for purchasing a two wheeler from the showroom, but when she received summons then only came to know that her husband has cheated and deserted her. This being the fact accused being a wife though made efforts to lodge a complaint before the police seeking 8 C.C. NO.53150/2013 protection from the third party, but till today what prevented her to lodge missing complaint is not explained by the accused. This aspect raises doubt in the mind of the court about plea set up by the accused. Further what about remaining nine cheques has also not been stated in her evidence. As per Ex.D2 she lodged complaint before the police on 27.9.2012, but Ex.P5 to P10 indicates that legal notice got issued by the complainant through RPAD as well as courier service must have been served in the month of January 2013 itself, but it appears that accused has neither replied to the notice nor gave instructions to the bank for stop payment or lodged complaint against her husband or present complainant for misusing of the cheque in question or stated anything during the course of examination U/s.313 Cr.PC with plausible explanation, which shows that this is also an unusual conduct of the accused to avoid criminal prosecution being launched against her, as such evidence of DW.1 cannot be believed as worthy of credence.
11. It is another contention of the learned counsel for the accused that as per Ex.D4 her account came to be closed in the year 2010 by the bank itself as such relying on a decision reported in 2008 (1) Crimes 596 (Kar.) -
9 C.C. NO.53150/2013Nagaraja Upadhya V/s. M.Sanjeevan) urged that provisions of Sec.138 of N.I. Act will not be attracted. Per contra it is the contention of the complainant that cheque came to be returned for the reason "account is in operative/dormant account". In this regard, if we go through the contents of Ex.P2 banker's memo depict that cheque in question came to be returned for the reason account is inoperative/dormant. So dictionary meaning of dormant is something that is dormant is not active or growing, temporarily inactive or as if in a deep sleep, but able to become active, as such contention of the defense counsel that account came to be closed in the year 2010 cannot be accepted.
12. It is relevant to point out that though accused has set up a plea regarding misuse of blank signed cheque said to have been given by her husband and also try to elicit that ink used for signature is that of different from the ink used for writing contents of cheque, but no steps have been taken by the accused. In this regard Section 20 of the Act provides that the person who signs and delivers an instrument either wholly blank or having written thereon, he gives prima facie authority to holder of the cheque to make it complete, 10 C.C. NO.53150/2013 therefore the contention of the accused on this aspect also cannot be sustained. So in view of the law laid down by the three Judges Bench of Hon'ble Apex Court of India, in the case of Rangappa V/s Sri.Mohan reported in (AIR 2010 SC 1898) referred supra by the counsel for the complainant if the accused is able to raise a probable defense so as to rebut the statutory presumption available under Sections 118 and 139 of N.I. Act, then only the case of prosecution fails. Section 118(1) of the Act also provides that every negotiable instrument is presumed to have been made or drawn for consideration. In such circumstances, as per the ratio laid down in the above decision it can be held that, presumption does indeed include existence of legally enforceable debt also.
13. So when the complainant has discharged his initial burden then burden of proving that cheque has not been issued for discharge of a lawful debt or liability is on the accused, but she has failed to do so. It may be noted that in such a case something probable has to be brought on record and burden of proof can be shifted back to the complainant by producing convincing circumstantial evidence by the accused only. In my opinion accused has miserably failed to 11 C.C. NO.53150/2013 discharge by making her version reasonably probable. In these circumstances, the only inference would be that accused has issued the cheque in question towards payment of loan amount. In the case on hand, admittedly the presumption referred to in Sec.139 of N.I. Act is mandatory presumption and not a general presumption. The statutory presumption in favour of the complainant, holder of cheque envisaged under Sections 118 and 139 of N.I. Act also stands un-rebutted. Therefore, looking from any angle I find that there are no reasons to discard the evidence of PW.1 or to believe the contention of the accused/DW.1 so as to create doubts about existence of legally enforceable debt or liability as on the date of issuance of cheques in question. For these reasons, arguments advanced by the learned counsel for the complainant holds good, accordingly any amount of arguments canvassed by the learned counsel for the accused is turned down. Hence, I answer point No.1 is in the affirmative.
14. Point No.2 : Now, what is to be seen by this court is, whether the complainant has followed remaining requirements as contemplated under Section 138 of Negotiable Instruments Act or not. With regard to service of 12 C.C. NO.53150/2013 notice is concerned, complainant got issued legal notice to the accused to her first address through RPAD, which was returned unserved on 9.1.2013 with a shara "no such person in the address". Ex.P7- another legal notice sent to the office address of the accused under RPAD was served upon the accused on 8.1.2013, but in her evidence DW.1 states that no notice was served. In this regard if we go through the address shown in Ex.P7 and P10 indicates that legal notice was being issued to the office address of the accused as shown in Ex.D2 & D3. Moreover, Ex.P5 & P6 depict that notice sent through courier must have been served. In these circumstances, it can be held that in view of Sec.27 of the General Clauses Act the notice sent through registered post deemed to have been served upon the accused, as such contention of the defense counsel on this aspect cannot be sustained. So, it is well settled that the object behind issuance of notice under clause (b) of Sec.138 of N.I. Act is to give intimation to the drawer about dishonouring of the cheque and to give him an opportunity to pay the money covered under the cheque so as to avoid the criminal prosecution being launched against him, but it appears that accused has not turned up, accordingly the complainant has 13 C.C. NO.53150/2013 lodged private complaint before this court. Even after receipt of summons accused has neither replied to the notice nor paid the cheque amount, then 15 days period of making of payment by the drawer under proviso (c) Sec.138 of N.I. Act held, expired on 23.1.2013. Cause of action to file complaint against the accused arose on 24.1.2013 itself. The private complaint was filed on 21.2.2013, which is well within the period. Therefore, it can be held that if the cheque is returned with an endorsement as "account is in operative/dormant account" and despite receipt of legal notice also drawer failed to comply, it amounts to an offence under Section 138 Negotiable Instruments Act. Wherefore, I come to conclusion that the complainant has proved his case to believe that accused has committed an offence under Section 138 Negotiable Instruments Act, which provides punishment with imprisonment for a term which may extend to two years or with fine which may extend to twice the amount of cheque or with both. Ex.P1-cheque in question was came to be drawn and issued in the year 2012 for a sum of Rs.2,50,000/-, so considering the facts and nature of offence accused is liable to pay compensation in accordance 14 C.C. NO.53150/2013 with law. Hence, I answer point No.2 is also in the affirmative.
15. Point No.3 : For the foregoing reasons, I proceed to pass the following......
ORDER Acting under Section 255(2) of Cr.PC accused is hereby convicted for the offence punishable under Section 138 of Negotiable Instrument Act.
Acting under Section 357(3) of Cr.PC accused is directed to pay a compensation/fine of Rs.3,42,000/- to the complainant towards the loss and injury suffered by him.
In the total compensation/fine amount, a sum of Rs.2,000/- shall be deposited as fine to the State.
In default of the aforesaid
compensation/fine amount accused shall
further undergo simple imprisonment for three months.
(Typed to my dictation by the stenographer, directly on computer, corrected, signed and then pronounced by me in the open court on this the 4th Day of September, 2015) (C.D. KAROSHI) XIV ADDL.C.M.M., BANGALORE 15 C.C. NO.53150/2013 ANNEXURE Witnesses examined for the complainant:
PW.1 : Sri. R. Umesh
Witnesses examined for the defence:
DW.1 : Smt. Abhinayana .G
Documents marked for the complainant:
Ex.P1 : Cheque
Ex.P1(a) : Signature of the accused
Ex.P2 & 3 : Bankers endorsement
Ex.P4 : Postal receipts
Ex.P5 & 6 : Courier receipts
Ex.P7 : Copy of the Legal Notice
Ex.P8 : Returned postal cover
Ex.P9 : Returned notice
Ex.P10 : Postal acknowledgement
Documents marked for the defence:
Ex.D1 : Experience certificate
Ex.D2 : Police complaint
Ex.D3 : Experience certificate
Ex.D4 : Certificate of Canara Bank
(C.D. KAROSHI)
XIV ADDL. C.M.M.,
BENGALURU
16 C.C. NO.53150/2013