Bangalore District Court
Smt. Lalitha R vs Smt.Nalinakshi on 14 December, 2022
KABC030641332020
Presented on : 15-12-2020
Registered on : 15-12-2020
Decided on : 14-12-2022
Duration : 1 years, 11 months, 30 days
IN THE COURT OF THE XVIII ADDL.CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
PRESENT: MANJUNATHA M.S. B.A., LL.B.
XVIII ADDL.C.M.M., BANGALORE
DATED : THIS THE 14 th DAY OF DECEMBER 2022
Criminal Case No.19175/2020
COMPLAINANT: SMT. LALITHA R
W/O RAVISH,
Hindu aged 60 years,
R/at No.2148, 8th B Main Road,
16th Cross, Yelahanka Newtown,
Bangalore-560064.
(By Sri.T.C.S.K - Advocate)
// Versus //
ACCUSED: SMT.NALINAKSHI
W/O NARAYANAPPA,
Hindu, Major,
R/at No.93, III Main Road,
1st Cross, Kaveri Layout,
Yelahanka Newtown,
Bangalore -560064.
(By Sri.M.R - Advocate)
2 Judgment C.C.19175/2020
Offence complained : U/Sec.138 of Negotiable Instrument
Act.
Name of the complaint : Smt. Lalitha R
Date of commencement
of evidence : 09-02-2021
Date of closing evidence : 14-11-2022
Opinion of the Judge : Accused found guilty.
(MANJUNATHA M.S.)
XVIII A.C.M.M.,BANGALORE.
JUDGMENT
The complainant has filed this complaint under section 200 of Code of Criminal Procedure Read with Section 138 of the Negotiable Instruments Act (in short referred as "N.I. Act") against the accused alleging that, she has committed the offence punishable under section 138 of NI Act.
02. The sum and substance of the complaint, is as follows;
The complainant averred in the complaint that the accused was residing in her own house just opposite to her residence at Yelahanka New town, Bangalore-64. The accused familiar to the complainant for 3 Judgment C.C.19175/2020 the past 4 years and her two sisters for the past two decades and living in the same locality. The accused developed more intimacy with the complainant. The complainant further stated that during the month of December 2018 the accused expressed her financial crisis for having spent considerable amount for her daughter's marriage and followed by payment of chits subscription amount run her and requested to lend Rs.15 lakhs as hand loan. The accused also agreed to pay interest at 2% per month by assuring repayment of the loan amount with in 18 months. Considering her request and close intimacy, the complainant has paid Rs.11 lakhs to the accused in five installments on different dates i.e., on 25.01.2019 she has paid a sum of Rs.1,00,000/-, to the accused and for which she has issued a post dated cheque dated 25-09-2020 bearing No.805429 for Rs.1 lakh, on 31.1.2019 paid a sum of Rs.3,00,000/- to the accused and for which she has issued post dated cheque dated 30-09-2020 bearing No. 656533 for Rs. 3 lakhs, on 13.2.2019 paid a sum of Rs. 3 lakhs to the accused and for which she has issued post dated cheque dated 13-10-2020 bearing No. 656534 for Rs.3 lakhs, on 15.2.2019 paid a sum of Rs.2,50,000/- to the accused and for which the accused has issued post dated cheque dated 15.10.2020 bearing No. 389350 for Rs.2,50,000/- and on 19.2.2019 paid a sum of Rs.1,50,000/-
4 Judgment C.C.19175/2020 to the accused and for which the accused has issued post dated cheque dated 19.10.2020 bearing No. 805417 for Rs.1,50,000/-. But the accused has failed to pay the interest as agreed by assigning the reason of failure of her chit business. Thereafter, the accused has sold her house without any intimation to the complainant and neighborers and vacated the house. The complainant made through search for the accused and managed to contact her over phone in the month of July 2020 and demanded for repayment of the loan amount and interest. However, the accused has sought some time to repay the loan amount and interest thereon by saying that after receipt of the sale consideration amount she will pay the loan amount. But she has not kept up her promise. The complainant has waited till the date of cheques. Theafter, the complainant with no other option has presented the post dated cheques which were issued by the accused while borrowing the loan for encashment through her banker. But the said cheques were came to be dishonoured for the reasons "Non CTS cheque", "payment stopped by drawer", "account closed" and present in proper zone" as per bank endorsements dated 28.9.2020, 1.10.2020, 14.10.2020, 17.10.2020 and 20.10.2020 respectively. Despite of knowing the bouncing of cheques the accused did not chose to repay the cheque amount or interest 5 Judgment C.C.19175/2020 thereon to the complainant. Hence, the complainant got issued demand notice to the accused on 28.10.2020 demanding the payment of the cheque amount. The said notice was duly served to the accused but the has failed to pay the cheque amount and issued untenable reply dated 4.11.2020 and thereby she has committed an offence punishable under section 138 of NI Act.
03. After filing of complaint, this court has taken cognizance of the offence punishable under section 138 of Negotiable Instrument Act, sworn statement of the complainant was recorded. Being satisfied that there are prima-facie materials to proceed against accused, summons was issued. After appearance, accused enlarged on bail and plea was recorded as per section 251 of Cr.P.C. The accused has not pleaded guilty but submitted that she has defense to make.
04. The complainant examined herself as PW1 by filing affidavit evidence and got marked Ex.P1 to 20. The accused has filed application under section 145(2) of NI Act for recall of PW1 for the purpose of cross-examination. The said application came to be allowed. The defence counsel has fully cross-examined PW1. After completion of complainant's evidence, statement of accused as contemplated under 6 Judgment C.C.19175/2020 section 313 of Code of Criminal Procedure was recorded. The accused has denied all the incriminating material appears against her in the complainant's evidence and submitted that she wants to lead defence evidence. Therefore case was posted for defence. The accused has stepped into witness box and examined herself as DW-1 and got marked Ex.D1 to D6. The complainant counsel has fully cross- examined DW-1.
05. Heard the arguments of complainant counsel. The defence counsel has filed written arguments. I have perused the materials available on record.
06. The points that arise for my consideration are as follows;
1. Whether the complainant proves that, accused has issued five cheques bearing No.805429 dated 25.09.2020 for Rs.1,00,000/-, No.656533 dated 30.09.2020 for Rs.3,00,000/-,No.656534 dated 13.10.2020 for Rs.3,00,000/- No.389350 dated 15.10.2020 for Rs.2,50,000/- and No.805417 dated 19.10.2020 for Rs.1,50,000/- towards discharge of debt, which were returned unpaid on presentation for the reason "Non CTS Cheque, Payment stopped by 7 Judgment C.C.19175/2020 drawer, Account closed and Present in proper zone" and despite of service of notice she has not paid the cheques amount and thereby committed an offence punishable under section 138 of Negotiable Instruments Act?
2. What Order?
07. My answer to the above points is as follows;
Point No.1: In the Affirmative.
Point No.2: As per final order for the following;
REASONS
08. POINT No.1: The Complainant has filed this complaint alleging that the accused has committed offence punishable under section 138 of N.I. Act. She pleads and asserts that, the accused has borrowed a hand loan of Rs.11 lakhs on different dates from 25.1.2019 to 19.2.2019 in five installments and issued five post dated cheques while borrowing the loan. The accused promised to repay the same within 18 months and also agreed to pay 2% interest per month. But the accused has failed to pay interest as agreed and also failed to repay the loan within reasonable time. Therefore, with no other option she has presented the aforesaid post dated cheques for encashment through her banker. But the said 8 Judgment C.C.19175/2020 cheques were came to be dishonoured for reasons "Non CTS Cheque, Payment stopped by drawer, Account closed and Present in proper zone". Thereafter she got issued demand notice to the accused calling upon her to pay the cheque amount. But despite of service of notice the accused has not paid the amount within 15 days, which gave raise cause of action to file this complaint.
09. To substantiate her case, the complainant has stepped into witness box and examined as PW.1 and got marked 20 documents as Exs.P-1 to 20. The complainant has reiterated the contents of the complaint in her affidavit evidence about lending of loan of Rs. 11,00,000/- to the accused and issuance of post dated cheques by the accused for repayment of said debt and their dishonour for "Non CTS Cheque, Payment stopped by drawer, Account closed and Present in proper zone", issuance of legal notice to the accused calling upon her to pay the amount covered under the said cheques and her failure to comply the same.
10. In this scenario, let me scrutinize the documents relied by complainant in order to examine the compliance of statutory requirements envisaged under section 138 of N.I. Act. Ex.P.1 to 5 are 9 Judgment C.C.19175/2020 the cheques dated 25.09.2020, 30.09.2020, 13.10.2020, 15.10.2020 and 19.10.2020 respectively. The said cheques were returned unpaid with an endorsements "Non CTS Cheque, Payment stopped by drawer, Account closed and Present in proper zone" as per Ex.P.6 to 11 bank endorsements dated 28.09.2020, 1.10.2020, 15.10.2020 , 17.10.2020 and 20.10.2020 respectively. Ex.P-12 is legal notice dated 28.10.2020 under which the complainant has demanded the payment of cheques amount, Ex.P.13 is the postal receipt, Ex.P.14 is the reply notice, Ex.P15 to 17 are the deposit receipts of Samruddhi Credit Co-operative Society Ltd., Ex.P18 and 19 are the lease agreements dated 22.05.2016 and 11.06.2018 and Ex.P20 is the certified copy of sale deed dated 08.11.2019. A careful scrutiny of the documents relied by the complainant goes to show that, statutory requirements of section 138 of N.I. Act have been complied with and this complaint is filed within time. The complainant by examining herself as PW1 and by producing aforesaid documents has discharged her initial burden.
11. Per contra, the accused has specifically denied the borrowing of alleged loan of Rs.11,00,000/- and issuance of cheques in question for discharge of said alleged debt in favour of the complainant. She has put-
10 Judgment C.C.19175/2020 forth her defence that she does not know the complainant and there is no any money transaction with her in respect of the alleged cheques. On 17.1.2020 she has vacated her old house, while vacating the house she has lost her cheque book. Therefore, immediately she has lodged stop payment intimation to the bank requesting not to entertain cheques if anybody presented the same for collection. After receipt of the notice she came to know that the complainant has took her misplaced cheques and misused the same to file present complaint. Therefore, she has lodged a police complaint before the Deputy General and Inspector General of Police on 4.11.2020 and also issued appropriate reply notice to the complainant by denying the allegation made in the notice. She has never issued any cheque to the complainant for repayment of the alleged loan. Hence, the cheques in question are not supported by any consideration. As such section 138 of NI Act is not attracted to the cheques in question. On these grounds she prays to acquit her from the case.
12. In the back drop of aforesaid rival contentions, this court has given anxious consideration to the material on record and the submissions made by both counsels. At the outset, it is pertinent to 11 Judgment C.C.19175/2020 mentioned that the accused has not disputed the cheques in question as well as signature found in the said cheques. The only contention of the accused that she has kept the signed cheques a bag which was lost while vacating her earlier house. Somehow the complainant has collected the said cheques and misused the same to file present case. When the drawer has admitted the cheque as well as the signature present therein, the presumptions envisaged under section 118 read with section 139 of NI Act, would operate in favour of the complainant. The Hon'ble Supreme Court in M/S Kalamani Tex and another V/s P. Balasubramanian (2021) 5 SCC 283 has held that the Statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then these 'reverse onus' clauses become operative, such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. Therefore once the drawer has admitted the issuance of cheque as well as on the signature present therein or it is established that signature in cheque belongs to accused, then the presumption envisaged under section 118 and 139 of NI Act, would operate in favour of the complainant. The said provision lays down a special rule of evidence applicable to negotiable instrument. The presumption is one of law and thereunder court shall presume that 12 Judgment C.C.19175/2020 the Negotiable instrument was endorsed for consideration. So, also in the absence of contrary evidence on behalf of the accused, the presumption under section 118 and 139 of NI Act goes in favour of the complainant. In the case on hand as stated above the complainant has established that signatures found in Ex.P1 to 5 cheques belongs to the accused. As such presumption under section 118 and 139 of NI Act has to be drawn in favour of the complainant. Section 118 reads as here:-
"That every negotiable instrument was made or drawn for consideration and that every such instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration". Further Section 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 section 138, for the discharge, in whole or in part, or any debt or other liability." A 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.
13 Judgment C.C.19175/2020
13. No doubt, the said statutory presumptions are rebuttable in nature. It is for the accused to place cogent and probable defence to rebut presumption raised in favour of the complainant. As discussed above when the complainant has relied upon the statutory presumption enshrined under section 118 read with section 139 of NI Act. It is for the accused to rebut the said presumption with cogent and convincing evidence. To put it other way, the burden lies upon the accused to prove that Ex.P.1 to 5 cheques were not issued for discharge of any debt, but the complainant has misused her blank signed cheques which were misplaced while vacating the house. It is worth to note that section 106 of Indian Evidence Act postulates that, the burden is on the accused to establish the fact which is especially within his special knowledge. This provision is exception to the General Rule that, the burden of proof is always on the prosecution to establish their case beyond all reasonable doubt. In that view of the matter the burden is on the accused to prove that cheques in question were not issued for repayment of any debt. To rebut the said presumption the accused has fully cross-examined PW1 and also led defence evidence by examining herself as DW1 and produced six documents and got marked the same as Ex.D1 to 6.
14 Judgment C.C.19175/2020
14. On perusal of the complainant averments and material on record it appears that it is the specific case of the complainant that the accused became a familiar to her for past 4 years and to her two sisters for the past two decades for the living in the same lane of the locality. Thereby, she developed close intimacy with the complainant being a neighbor. After the marriage ceremony of accused's daughter and on passage of time of two years the accused gained trust of the complainant. On such acquaintance during the month of December 2018 the accused has approached the complainant and expressed her financial crisis and requested to lend hand loan of Rs. 15 lakhs. Considering her request and close intimacy the complainant has paid Rs.11 lakhs on different dates in five installment between 21.5.2019 to 19.2.2019 by way of cash and for which the accused has issued five post dated cheques to the complainant and agreed to repay the said loan within 18 months with interest at the rate of 2%per month. But the accused has failed to pay the interest as agreed for one or other reasons. Thereafter, without informing the complainant the accused has vacated her house and shifted her residence somewhere. The complainant after through search has succeeded to contact her over phone and requested for repayment of loan amount and interest thereon. At that time the accused sought for 15 Judgment C.C.19175/2020 some time for repayment of the loan amount and interest thereon by contending that after receipt of the sale consideration amount in respect of her house property she will repay the loan amount and interest. The complainant waited till the date of cheques, but the accused has failed to pay the loan amount and interest. The complainant with no other options has presented the aforesaid post dated cheques for encashment through her bank. But the said cheques were returned unpaid for the reasons reason "Non CTS Cheque, Payment stopped by drawer, Account closed and Present in proper zone" as per Ex.P.6 to 11 bank endorsements and despite of receipt of notice the accused failed to pay the cheques amount.
15. The complainant claims that she has paid Rs.11 lakhs to the accused in five installment on different dates from 25.1.2019 to 19.2.2019 by way of cash. Admittedly, no document was got executed evidencing the alleged loan transaction. During the cross-examination the complainant has admitted that she has not obtained any agreement or DP note from the accused while borrowing the loan. That means it is clear that the complainant claims that she has lent a loan of Rs.11 lakhs to the accused without obtaining any document or security for prompt 16 Judgment C.C.19175/2020 repayment of the alleged loan. The complainant contended hat due to close intimacy the gained her trust as such she has lent such huge amount without obtaining any document or DP. The accused has seriously disputed the passing of consideration of Rs.11 lakhs and existence of legally enforceable debt. To that effect the defence counsel has cross-examined the complainant at length. The complainant during the cross-examination has deposed that in the year 2007 she has sold her house situated at Chennai and received sale consideration of Rs.10 lakhs through her Vijaya bank account and she has withdrawn the said amount time to time and kept it in her house. Out of the said amount she has paid Rs.11 lakhs to the accused and she has no impediment to produce the said bank statement. In support of said contention the complainant has produced xerox copy of the sale deed dated 26.4.2007 and its translated copy and xerox copy of Vijaya Bank Pass book, but the same were not got marked in the evidence as the same they are xerox copies. During the cross-examination, the complainant has deposed that ನನನ ನನಯಲಕಕ ಹಜರನ ಪಡಸರನವ ದನನಕ 26.4.2007 ರ ಕ ಕಯ ಪತ ಕದಲ ಕಣಸರನವ ವನಕಟಟಶ ನನನ ಬವನಗಬಟಕನ. ಸದರ ಕ ಕಯ ಪತ ಕದಲ ಸದರ ಸಸಟ ವನಕಟಟಶ ರವರ ಸಸಯರರತ ಆಸಸ ಎನದನ ಬರದರನತಸದ ಎನದರ ಸರ. ಸಸಟಮರಟದ ಪಪತ ಫಲ ಹಣ ರರ.15.20.000/- ಗಳನನ ನ ವನಕಟಟಶ ರವರನ ಪಡದನ ಕರನಡದರ ಎನದನ ಸದರ ಕ ಕಯ ಪತ ಕದಲ ಇರನತಸದ ಎನದರ ಸಕ ನನಗ ರರ.10 ಲಕ ಕರಟಟ ರನತಸರ ಎನದನ ಹಟಳನತಸರ. ಸದರ ಕ ಕಯ ಪತ ಕದಲ ನನನ ಪಕಗರ 17 Judgment C.C.19175/2020 ಳಗರನವದಲಲ ಮತನಸ ಸಕಯಗಯರ ಸಹ ಸಹ ಹಕರನವದಲಲ ಎನದರ ಸರ . ಸದರ ಕ ಕಯ ಪತ ಕದಲ ನನನ ಹಸರಗಲ ನನನ ಗನಡನ ಹಸರಗಲ ಪಪತಫಲದ ಹಣವನನ ನ ಪವತಸದ ಬಗಗ ನಮರದನ ಇಲಲ ಎನದರ ಸರ. On perusal of the above versions of the complainant that it is clear that the said house property was standing in the name of her brother-in-law and he has sold the said property for Rs.15,20,000/- and received the sale consideration amount. The complainant claims that the said property was a joint family property and she also having a right in the said property. Therefore, her brother-in-law has paid Rs.10 lakhs to her as her share in the property. But the said contention is not corroborated with the recitals of the sale deed dated 26.4.2007. The complainant has not taken any pain to examine her brother -in-law or any witness to the said sale deed to prove that she has received her share of Rs. 10 lakhs from her brother-in-law.
16. The learned counsel for the complainant contended that now Vijaya Bank is merged with Bank of Baroda as such the complainant is unable to get her bank statement inspite of her best effort. However she has produced her xerox copy of Vijaya Bank pass book. The said pass book contained only 8 entries from 4.1.2007 to 1.6.2007. On perusal of the said bank pass book it appears that on 26.4.2007 the complainant has deposited Rs.10 lakhs by way of cash to her bank account. That 18 Judgment C.C.19175/2020 means on the date of registration of sale deed she has deposited Rs.10,00,000/- to her account. No doubt sale deed dated 26-04-2007 has not contained any recitals regarding payment of sale consideration amount to the complainant, but pass book entry leads to believe that she might have received Rs.10,00,000/- from her brother-in-law and she has deposited the same to her account on 26-04-2007. The pass book entries also discloses that she has withdrawn Rs.5 lakhs on 5.5.2007, Rs.15,034/- on 9.5.2007, Rs.25,000/- on 22.5.2007, Rs.1 lakhs on 22.5.2007 and Rs.9,350/- on 1.6.2007. Thereby she has withdrawn considerable amount from her bank account in the year 2007 itself and now the complainant claims that she has paid Rs.11 lakhs in the year 2019 by mobilizing the amount which was withdrawn from her bank account i.e., after 12 years from withdrawing the amount from her bank account. The complainant claims that after withdrawing the said amount from her bank account she has kept the same in her house till 2019 i.e., more than 12 years. No prudent man will accept the said contention of the complainant. It appears that in order to show her financial capacity the complainant is relying sale transaction that was taken place way back in the year 2007. The complainant has not 19 Judgment C.C.19175/2020 produced any other document to show that she was possessed Rs.11 lakhs during the year 2019.
17. The accused initially has contended that she does not know the complainant and she has no money transaction with her. During the cross-examination on confronting Ex.P.18 and 19 lease agreements to her, she has admitted that she signed the said lease agreement as witness on the say of Shyamala who is none other than the sister of the complainant herein. The complainant also signed witness to the Ex.P.19 lease agreement, which establish that the accused acquainted the Complainant in the year 2018 itself. The accused admitted that she was residing in the first floor of house No. 2148 and Shyamala and her parents were residing in the ground floor. At page Number 10 of deposition of DW1, she has initially admitted that she knows Shyamala and complainant and later on she changed version by saying that she knows Shyamal alone. Furthermore the complainant has produced Ex.P.15 to 17 deposit receipts issued by Samrrudhi Credit co-operative society contending that the accused has deposited the said amount in the name of the complainant towards payment of the interest in respect of the loan amount. During the cross-examination the accused has admitted 20 Judgment C.C.19175/2020 that she is working in the said co-operative society as Executive member and her name is reflecting Ex.P.15 to 17 receipts as Executive and complainant name also reflected in the said receipts. This shows that the complainant and accused are acquainted each other before filing the complaint. But the accused now falsely contending that she has no acquaintance of the complainant in order to escape from the clutches of the law.
18. The accused has taken defence that she has vacated her old house on 15-01-2020 , while vacating house she lost her bag in which she has kept five signed cheques and other blank cheques In the month of August 2020 she came to know about the missing of cheques, immediately she has given stop payment intimation to the bank requesting them not to honour the said missing cheques if anybody presented for encashment. She further contended that after receipt of the legal notice from the complainant, she came to know that the complainant has took her cheques and misused the same. Therefore she has lodged police complainant against the complainant before DGP and IGP and also issued suitable reply to the complainant's notice. During the cross-examination she deposed that due to Covid-19 pandemic 21 Judgment C.C.19175/2020 police have not allowed her to enter into police station to lodge police complaint. Therefore she she has sent the complaint to DGP and IGP. She further deposed that she has given stop payment intimation in respect of 29 cheques and out said 29 cheques she has signed only 5 cheques. The said cheques have been misused by the complainant. In support of said contention apart from her oral testimony the accused has produced Ex.D1 to 6 documents. Ex.D1 is the notice dated 28-10-2019 issued by the complainant after dishonour of the cheques. Ex.D2 is the reply notice issued by the accused. Ex.D3 is the postal receipt. Ex.D4 is the copy of the complaint lodged by the accused against the complainant before DGP and IGP. Ex.D5 is the stop payment intimation given by the accused and Ex.D6 is the endorsement issued by the bank regarding receipt of stop payment intimation.
19. In the reply notice Ex.D2, the accused contended that on 17-01- 2020 she has shifted her house and while shifting her house she has lost bag which contained cheque book. But she has not lodged stop payment intimation immediately after shifting the house either in the month of January or February 2020. She has lodged stop payment intimation as per Ex.D5 in respect of 29 cheques on 04-08-2020. There is a in 22 Judgment C.C.19175/2020 ordinate delay in lodging stop payment intimation. No proper explanation is come forward for delay in lodging stop payment intimation on behalf of accused. This shows that after anticipation of presenting the cheque by the complainant the accused has given stop payment intimation to the bank on 04-08-2020. The complainant has issued demand notice on 28.10.2021 calling upon the accused to repay the cheque amount. The accused has issued Ex.D.2 reply notice on 5.11.2020 stating that on 17.1.2020 she has shifted her house and while transporting household articles she has lost her bag in which she has kept her cheque book. Immediately after she has informed the same to the Syndicate bank and Dhanalakshmi bank on 4.8.2020 regarding misplace of her cheque book. But she has lodged the police complaint as per Ex.D.4 on 4.11.2020, that means the accused has lodged a police complaint only after receipt of the demand notice issued by the complainant regarding dishonour of cheque and till receipt of notice the accused has not chosen to lodge any police complaint regarding misplaced cheque books. The accused lodge Ex.D.4 police complaint not before the Jurisdictional police but before the DIG and IGP. The accused during her cross-examination contended that due to covid-19 pandemic the jurisdictional police have not allowed her to enter into 23 Judgment C.C.19175/2020 police station to lodge a complaint. But what prevented her to send complaint through the registered post. It shows that only after receipt of the notice and after much consultation with her advocate has filed Ex.D.4 complaint to DIG and IGP only with an intention to materialize her defence.
20. The accused contending that she has kept five signed blank cheques in her misplaced bag and the complainant some how has taken the possession of the said cheques and misused the same to file a present case. Even after filing this complaint the accused has not lodged any police complaint before the jurisdictional police and court against the complainant alleging that she has misused her cheques. After lodging Ex.D.4 complaint, the accused has not shown any interest in prosecuting the said complaint. The accused has not satisfactorily explained why she has kept five signed blank cheques in her bag. Ordinarily no prudent man will keep signed blank cheques so carelessly. Furthermore the complainant had no previous enmity with the accused, hence there is no reason to say that she has misused the blank cheques of the complainant. The accused has admitted that she has performed her daughter's marriage on 27-11-2016. Obvious she would have spent 24 Judgment C.C.19175/2020 considerable amount for her daughter's marriage. The accused also deposed for repayment of loan she has sold her hosue in the year 2019, that means she was in need of money in the year 2019. Therefore she might have borrowed loan from from the complainant and issued post dated cheques for repayment of the said loan. Hence by looking all these aspects I am of the opinion that defence taken by the accused is not a probable defence to rebut the presumption envisaged under section 118 and 139 of NI Act.
21. The complainant contended that on 8.11.2019 the accused has sold her house to one Manjula.A. for sale consideration amount of Rs. 48 lakhs. Despite of the same she has not repaid the loan amount to the complainant and others. The complainant and others have forced her to repay the loan. Therefore, she has lodged stop payment intimation to the bank in respect of 29 cheques. In support of his submission the complainant has produced Ex.P.20 certified copy of the sale deed executed by the accused in favour of one Manjula dated 8.11.2019. On perusal of the recitals it appears that the accused has sold her house for sale consideration of Rs. 48 lakhs and received the sale consideration by way of cash and cheque. The recitals of the sale deed also discloses that 25 Judgment C.C.19175/2020 she has sold her house since she was need of funds to meet some her family and other legally necessities. It is also mentioned in the Ex.P20 that the accused has obtained financial assistance from Syndicate Bank and REPCO for purchase and construction of said house and she has discharged the said loan before selling the house. That means the accused for her legal necessities has sold her house. But during the cross examination she has contended that she has faced some health issued in the said house therefore she has sold the house. The said version of the accused is totally contradictory to the recitals of the Ex.P.20 sale deed.
22. The learned counsel for the accused in written arguments has contended that the complainant has failed to prove her financial capacity to lend such huge amount of Rs. 11,00,000/- during the relevant point of time. I have perused the cross examination of PW1, the defence counsel has suggested that the complainant has no financial capacity to lend Rs.11,00,000/- during the relevant point of time. In order to prove her financial capacity, the complainant has not produced any document . The xerox copy of the sale deed dated 26.4.2007 and pass book produced by the 26 Judgment C.C.19175/2020 complainant may not helpful to the complainant to prove her financial capacity in the year 2019 to lend Rs.11 lakhs to the accused. During the cross-examination the complainant deposed that in the year 2007 she has received sale consideration amount of Rs. 10 lakhs by selling her house property situated at Chennai. But she has admitted that in the sale deed produced by her no recitals that she has received sale consideration amount. She also admitted that there is a recitals in the said sale deed the said property was the self acquired property her brother-in-law. Therefore, the copy of the sale deed dated 26.4.2007 is not helpful to the complainant to prove her financial capacity. No doubt, in the bank pass book produced by the complainant discloses that the complainant has deposited Rs.10 lakhs on 26.4.2007 to her bank account and immediately she has withdrawn considerable amount to from her bank account on 5 occasions in the year 2007 itself. Except said xerox copies of sale deed and bank pass book no other document has been produced to establish that the complainant had a financial capacity to lend Rs.11 lakh in the year 2019. The complainant contended that she has withdrawn amount from her bank account time to time and kept the 27 Judgment C.C.19175/2020 same in her house. In support of her contention no bank statement has been produced. Therefore, the complainant has failed to prove her financial capacity and source of income to mobilize the amount of Rs.11 lakhs during the relevant point time. But the accused has failed to take probable defence to rebut the presumption under section 118 and 139 of NI Act as stated above as such question of proving the lending of loan and financial capacity by the complainant does not arise at all in view of the presumption under section 118 and 139 of NI Act. As such non proving the financial capacity by the complainant is not fatal to the present case because the complainant has no initial burden to prove her financial capacity. Only after rebutting the presumption envisaged under section 118 and 139 of NI Act by the accused by raising probable defence the complainant requires to prove existence of legally recoverable debt and her financial capacity. As referred above, the defence taken by the accused is not a probable one. Hence question of proving the financial capacity does not arise at all in the facts and circumstances of the present case. Hence, I am of the considered view that the accused has completely failed to rebut the presumption 28 Judgment C.C.19175/2020 envisaged under Section 118 and 139 of N.I. Act by raising probable defence.
23. From the discussion made supra, it is clear that, the accused neither taken probable defence nor taken steps to prove the same. To put it other way, the accused has not taken and proved probable defence to rebut the presumption of law available in favour of the complainant, envisaged under section 118 read with section 139 of N.I. Act. Accordingly, the case of the complainant is acceptable. The complainant has proved that, for discharge of her liability the accused has issued Ex.P.1 to 5 cheques and she has intentionally not maintained sufficient amount in her account to honour the said cheque. Hence, this point No.1 under consideration is answered in the Affirmative.
24. POINT NO.2: In view of the reasons stated and discussed above, the complainant has proved the guilt of the accused punishable under section 138 of N.I. Act. Hon'ble Supreme Court of India in a decision reported in, (2015) 17 SCC 368, in a case of H.Pukhraj Vs. D.Parasmal, observed that, having regard to the length of trial and date of issuance of the cheque, it is necessary to award reasonable interest on the cheque amount along with cost of litigation. Further the Hon'ble 29 Judgment C.C.19175/2020 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 that "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 but is not debarred at later stage subject to appropriate compensation as may be found acceptable to the parties or the court. "
Therefore, keeping in mind the time when the transaction has taken place and 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. The complainant has paid the amount to the accused in between 25.1.2019 to 19.2.2019. The dates of Ex.P.1 to 5 cheques are 25.09.2020, 30.09.2020, 13.10.2020, 15.10.2020 and 19.10.2020 respectively and the amount covered under five cheques is Rs.11 lakhs. By considering all these aspects, this court is of the opinion that, it is just and proper to imposed fine amount of Rs.11,85,000/-, which includes interest and cost of litigation, out of which compensation of
30 Judgment C.C.19175/2020 Rs.11,80,000/- has to be awarded to the complainant U/s 357 Cr.P.C. Accordingly, this court proceeds to pass the following;
ORDER Acting under section 255 (2) of Criminal Procedure Code, accused is here by convicted for the offence punishable under section 138 of Negotiable Instrument Act and accused has been sentenced to pay fine of Rs.11,85,000/-(Rupees Eleven Lakhs and Eighty Five Thousand only). In default thereof accused shall undergo simple imprisonment for the term of 6(Six) months.
Acting under section 357(1) (b) of code of criminal procedure, it is ordered that Rs.11,80, 000/- (Rupees Eleven Lakh and Eighty Thousand only), therefrom shall be paid to the complainant as a compensation, remaining fine amount of Rs.5,000/- (Rupees Five Thousand only) is defrayed to the state for the expenses incurred in the prosecution.
31 Judgment C.C.19175/2020 Office is directed to supply free copy of the judgment to the accused.
(Directly dictated to the Stenographer on computer, typed by her, corrected by me and then judgment pronounced in the open court on this the 14th day of December, 2022) (MANJUNATHA M.S.) XVIII A.C.M.M.,BANGALORE ANNEXURE I. List of witnesses on behalf of complainant:
P.W.1 : Smt.Lalitha R
II. List of documents on behalf of complainant:
Exs.P-1 to 5 : Original Cheques;
Exs.P-1(a) to 5(a) : Signature of the accused;
Exs.P-6 to 11 : Bank memos;
Ex.P-12 : Legal Notice dated 28.10.2020;
Ex.P-13 : Postal Receipt;
Ex.P-14 : Reply Notice dated 04.11.2020;
Exs.P-15 to 17 : Samruddhi Credit Co-operative Society Ltd.,
Receipts;
Exs.P-18 and 19 : Lease Agreement;
Exs.P-18(a) 19(a): Signature;
Ex.P-20 : Copy of Sale Deed dated 08.11.2019.
32 Judgment C.C.19175/2020
III. List of witnesses for the accused:
DW-1 : Smt.Nalinakshi.
IV. List of documents for accused:
Ex.D-1 : Copy of Legal Notice dated 28.10.2020
Ex.D-2 : Reply Notice dated 05.11.2020
Ex.D-3 : Postal Receipt;
Ex.D-4 : Copy of Police complaint dated 04.11.2020
Ex.D-5 : Copy of stop payment intimation dt; 04.08.2020.
Ex.D-6 : Bank endorsement issued by the Dhanalakshmi
Bank.
(MANJUNATHA M.S.)
XVIII A.C.M.M.,BANGALORE
Digitally signed
by
MANJUNATHA MANJUNATHA
MS MS
Date: 2022.12.14
17:19:02 +0530