Bangalore District Court
Ramesh vs H.Parvathamma on 23 July, 2021
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 23rd day of July - 2021
PRESENT: SRI. N.K.SALAMANTAPI, B.A., LL.B.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.6416/2019
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Ramesh,
S/o.Late.Puttaswamy,
Aged about 62 years,
R/at No.22, 1st Main, 1st Cross,
Kavika Layout, Mysore Road,
Bengaluru-26.
(Rep. by Sri.Murali.M, Adv.)
V/S
Accused : H.Parvathamma,
Working as Peon,
Office of Deputy Director of Fisheries,
Government of Karnataka,
Bengaluru Zone,
No.39/2, 6th Floor,
ASVNN Bhavan, K.G.Road,
Bengaluru-09.
And also at:
Kote Road,
Shivamogga Town,
Shivamogga District-577 201.
(Rep.by Sri.B.M.Chikkanna, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
Judgment 2 C.C.No.6416/2019
FINAL ORDER : Accused is Convicted.
DATE OF ORDER : 23.07.2021.
(N.K.SALAMANTAPI)
XXIII Addl.CMM., Bengaluru.
JUDGMENT
The complainant has presented the instant complaint against the accused on 03.12.2018 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheque of Rs.1 lakh.
2. The brief facts of the complainant case is as follows:
The accused was acquainted with the complainant from several years and taking advantage of the said acquaintance and friendship, in the month of May, 2016, the accused had approached the complainant to lend hand loan of Rs.1 lakh for her domestic needs and legal necessities. Accordingly, by considering the said acquaintance of the accused, the complainant made an arrangement sum of Rs.1 lakh and paid the same to the accused and accused acknowledged the receipt of the said amount from the complainant and she promised to repay the said amount within August, 2018.
Judgment 3 C.C.No.6416/2019 The complainant has further contended that but accused has failed to repay the said amount by giving evasive reasons and finally, in order to repay the said amount, she issued a cheque of Rs.1 lakh drawn on the State Bank of Mysore and assured the complainant, the same will be honoured on its presentation.
The complainant has further contended that he has presented the said cheque for encashment through his banker, but the said cheque was returned with an endorsement "Funds Insufficient" on 26.09.2018. Thereafter, the complainant immediately brought the said fact to the notice of accused and requested to arrange funds, but she failed to arrange the same. Therefore, the complainant got issued legal notice to the accused through his counsel on 09.10.2018 by way of R.P.A.D., calling upon her to pay the said cheque amount. The demand notice sent to her residential address was returned with a shara "Left Returned to Sender" and demand notice sent to her working address was duly served on her. Despite, service of legal notice, the accused neither paid the amount nor replied the same. Thus, she committed an offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
Judgment 4 C.C.No.6416/2019
3. After receipt of the private complaint, my predecessor in office took the cognizance and got registered the PCR and recorded the sworn statement. Since made out prima-facie grounds to proceed against the accused for the alleged offence, got issued process.
4. In response to the summons, the accused appeared through her counsel and obtained bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to her, wherein, she denied the same and claimed to have the defence.
5. To prove the case of the complainant, he himself choosen to examine as PW.1 and got marked Exs.P1 to P8. The PW.1 was subjected for cross-examination by the advocate for the accused.
6. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein the accused denied the same. In support of the defence, the accused herself was examined as DW.1, but not produced any documents in support of her defence and she was subjected for cross-
examination by the advocate for the complainant. In the cross-
Judgment 5 C.C.No.6416/2019 examination of DW.1, complainant counsel got confronted one document and same is marked as Ex.P9.
7. I have heard the arguments of both side counsels.
8. On going through the rival contentions, based on the substantial evidence available on record, the following points would arise for determination:
1) Whether the complainant proves beyond the reasonable doubt that the accused got issued Ex.P1-cheque bearing No.113604 to the complainant towards discharge of legal recoverable debt or liability and the said cheque was dishonoured?
2) Whether the complainant proves beyond the reasonable doubt that after dishonour of cheque served notice to the accused in compliance of Section 138(b) of Negotiable Instruments Act?
3) What Order?
9. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Affirmative Point No.2 : In the Affirmative Point No.3 : As per final order, for the following:
REASONS
10. POINT NOs.1 and 2: Since both the points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.
Judgment 6 C.C.No.6416/2019 It is the main contention of the complainant that the accused has received an amount of Rs.1 lakh from him for her domestic needs and legal necessities in the month of May, 2016 and promised to repay the said amount within August, 2018, but she has failed to repay the said amount and finally she has issued a cheque bearing No.113604 dated 17.11.2018 for sum of Rs.1 lakh, drawn on the State Bank of Mysore. The complainant has presented the said cheque for encashment through his banker, but the same was dishonoured with an endorsement dated 26.09.2018 stating "Funds Insufficient". Thereafter, he has issued demand notice to the accused to her two addresses, one is her residential address and another one is working address. The notice sent to the residential address was returned with an endorsement that "Left Returned to Sender" and notice issued to the working address of the accused was duly served. Inspite of repeated requests made by the complainant, the accused did not repay the amount covered under the cheque.
11. In order to prove the above contention, the complainant filed his affidavit in lieu of his oral examination and himself examined as PW.1. Wherein, he has reiterated the averments made in the complaint. In support of his contention, he relied upon the documents at Exs.P1 to P9. They are:
Judgment 7 C.C.No.6416/2019
a) Ex.P1 is the cheque bearing No.113604 issued by the accused for sum of Rs.1 lakh dated 20.11.2017, drawn on the State Bank of Mysore, Shimoga Branch, Shimoga.
b) Ex.P1(a) is the alleged signature of accused.
c) Ex.P2 is the Bank Memo dated 26.09.2018.
d) Ex.P3 is the Legal Notice dated 09.10.2018
e) Exs.P4 & P5 are the Postal receipts.
f) Ex.P6 is the unserved R.P.A.D cover.
g) Ex.P6(a) is the legal notice at Ex.P6.
h) Ex.P7 is the complaint dated 13.11.2018 lodged by the complainant counsel before the Post Master, regarding report of delivery of notice sent by RPAD.
i) Ex.P8 is the track consignment report.
j) Ex.P9 is the xerox copy of voters identity card pertaining to the accused herein.
The PW.1 was subjected to the cross-examination by the advocate for the accused.
12. On the other hand, the learned counsel for the accused argued that the accused did not receive any amount from the complainant. The complainant is the LIC Agent. The accused for purchasing the LIC bond, she has given blank cheque by putting her signature. But the said cheque was not issued in favour of complainant for the purpose of discharge of legally recoverable debt.
Judgment 8 C.C.No.6416/2019
13. The accused's counsel further argued that the accused is working in Bengaluru. She did not reside at the address of Shimoga, the complainant purposefully for the purpose of not bringing to the notice of accused, he sent notice to the address of Shimoga, where she was not residing. Thus, the demand notice was not served on the accused. Therefore, the complaint which filed by the complainant is not maintainable against the accused. Hence, he prayed to dismiss the complaint.
14. I have carefully perused the demand notice, postal receipts, acknowledgment, postal cover and track consignment report produced by the complainant before this court. On carefully perusal of all the above documents, it discloses that the complainant has issued demand notice to the both residential and working addresses of the accused, but the notice issued to the address of residential was returned with a postal shara 'left returned to sender', but the notice issued to the working address of the accused was duly served to the accused. As per track consignment report, the demand notice was received by the accused. Therefore, the argument addressed by the counsel for the accused in respect of non-service of demand notice to the accused is not helpful to the accused to dismiss the complaint.
Judgment 9 C.C.No.6416/2019
15. On perusal of cross-examination of DW.1, she has deposed in her cross-examination that:
"ಪಿರರರ್ಯಾದಿಯಯಿಂದ ರರ.1 ಲಕ್ಷ ಸರಲ ಪಡಡೆದದುಕಡೆರಯಿಂಡಿದದುದ , ಅದರ ತತೀರದುವಳಿಗರಗಿ ನರನದು ನಿಪಿ.1 ರ ಚಡೆಕಕ್ಕನದುನ್ನು ನಿತೀಡಿದಡೆದತೀನಡೆ. ನಿಪಿ.1 ರ ಚಡೆಕಕ್ಕನಲಲ್ಲಿರದುವ ಸಹಿ ನನನ್ನುದಡೆತೀ."
16. From the above admission it is clear that the accused has received an amount of Rs.1 lakh from the complainant and she has issued Ex.P1-cheque bearing No.113604 for an amount of Rs.1 lakh to discharge of legally recoverable debt to the complainant. Therefore, she cannot say that she did not issue cheque at Ex.P1 for sum of Rs.1 lakh in favour of complainant for discharge of legally recoverable debt.
17. Thus from the cross-examination of DW.1, it is crystal clear that Ex.P1 cheque belongs to accused and signature marked at Ex.P1(a) is that of accused. When the accused admits the cheque and signature on the cheque belongs to her, then the initial presumption arises in favour of complainant under Section 118(a) of Negotiable Instruments Act that complainant is holder of cheque Ex.P1 for valid consideration. Further, from the perusal of records, it reveals that complainant has complied the provisions of Section 138 of Negotiable Instruments Act. Hence, the initial Judgment 10 C.C.No.6416/2019 presumption under Section 139 of Negotiable Instruments Act arises in favour of complainant that accused has issued the cheque Ex.P1 for discharge of legally recoverable debt. The initial presumptions arisen in favour of complainant under Sections 118(a) and 139 of Negotiable Instruments Act are rebuttable presumptions, and accused is at liberty to rebut the presumptions by cross-examining PW.1 or by adducing the defence evidence or by both.
18. I have perused the oral evidence of DW.1, wherein she has taken defence that she did not take loan of Rs.1 lakh from the complainant. The complainant was the LIC Agent, for the purpose of purchasing the LIC Policy, she has given blank cheque by putting her signature, but she did not fill up the said cheque and she has not received demand notice from the complainant. But in the statement under Section 313 of Cr.P.C. the accused has stated that she has received an amount of Rs.30,000/- from complainant as hand loan, at that time the complainant has received signed blank cheque. Though she repaid the said hand loan amount of Rs.30,000/- to the complainant, complainant did not return her signed blank cheque. By misusing the same, he filed the false case against her.
Judgment 11 C.C.No.6416/2019
19. In the cross-examination of PW.1, the accused has suggested to PW.1 that for purchase of Insurance Policy, the complainant has took blank cheque and other documents from the accused, the same was denied by the PW.1. But the accused, in her statement under Section 313 of Cr.P.C. stated that she had received sum of Rs.30,000/- from complainant as loan, to the said loan, the complainant has took blank cheque. The accused, in her statement under Section 313 Cr.P.C., stated that she has repaid the said loan amount of Rs.30,000/- to complainant, but he did not return the said cheque to her. In order to prove the said fact, the accused has not produced any documents before this court. The PW.1 has denied the suggestions that accused had no any financial transaction with him and accused had not borrowed any amount from him and issued the cheque at Ex.P1 for repayment of alleged amount of Rs.1 lakh. The PW.1, in his cross-examination, has stated that in the month of May, 2016, he paid sum of Rs.1 lakh to the accused at her office, which was situated at Cubbon Park. The said amount was received by accused for her son's Engineering course education purpose. The said fact was not denied by the accused in the entire cross- examination of PW.1. In the defence evidence, accused has stated that she has no any money transaction with complainant, Judgment 12 C.C.No.6416/2019 but in the year 2007, her madam, who was the Women Director of Fisheries Department, Shimoga had introduced the complainant to her and stated he is an LIC Agent and advised her to purchase Insurance Policy from him, in view of the same, for purchase of Insurance Policy, she put her signatures to the cheque and application and handed over the same to complainant. In order to prove the same, she has not produced any single piece of document before this court. DW.1, further stated that in the year 2008, she was transferred to Bengaluru Office and now she is working in near Cubbon Park Office, Bengaluru. The DW.1, in her cross-examination has admitted that the disputed cheque at Ex.P1 belongs to her and Ex.P1(a) signature is also that of her.
20. The DW.1, in her chief-examination, stated that cheque bounce notice sent by complainant was not reached her. But she admitted in the cross-examination that the address given in the cause title of the complaint is that of her and same is true and correct. Exs.P4 and P5 are the postal receipts. Ex.P6 is the postal cover, addressed to the accused as per the address mentioned in the cause title of complaint. But, postal cover at Ex.P6 was returned for the reasons 'left return to sender'. Ex.P8 is the Track Consignment, it discloses that the article was delivered to the accused on 20.10.2018. Thus an inference can Judgment 13 C.C.No.6416/2019 be drawn that accused was well aware of the contents of notice, she has not replied the notice and thereby accused has not utilized the opportunity available for her to disclose about her defence at the earliest. When the accused has not disclosed her defence at the earliest an inference has to be drawn that accused has taken false defence in the defence evidence.
21. In the entire cross-examination of PW.1, the DW.1 has not disputed the financial capacity of complainant. But the DW.1, in her cross-examination, admitted the suggestion of complainant counsel that she borrowed an amount of Rs.1 lakh from complainant and for repayment of the same, she got issued Ex.P1-cheque in favour of complainant. Absolutely, there is no any material on record to show that accused has purchased Insurance Policy from the complainant. In the year 2007, when accused has purchased the insurance policy in the presence of her madam, then there was no any impediment to accused to call her madam, who worked as Women Director at Fisheries Department and examine her on her behalf. Accused has not taken any strain to substantiate her defence.
22. Accused has not produced any document to show that she has borrowed an amount of Rs.30,000/- from complainant and Judgment 14 C.C.No.6416/2019 further accused has not placed any iota of evidence on record to prove that she has issued signed blank cheque at Ex.P1 in favour of complainant. Mere taking defence is not sufficient to believe the version of accused. Absolutely, accused has not produced any clinching evidence on record to believe her version.
23. Therefore, from the perusal of oral and documentary evidence placed on record it reveals that complainant has made out his case and accused has failed to rebut the presumptions arisen in favour of complainant. Thus complainant has proved that accused has committed an offence punishable under Section 138 of Negotiable Instruments Act beyond all reasonable doubt. Hence, in view of the above said reasons, I hold point Nos.1 and 2 in the Affirmative.
24. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
ORDER Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay total fine of Rs.1,25,000/-.
Out of the said fine amount, sum of Rs.1,20,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C.
Judgment 15 C.C.No.6416/2019 Remaining amount of Rs.5,000/- shall be payable to the state as fine amount.
In default of payment of fine amount, the accused shall under go simple imprisonment for 03 (Three) Months.
The bail bond and cash security/surety bond of the accused stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 23 rd day of July - 2021) (N.K.SALAMANTAPI) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Ramesh List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque Ex.P1(a) : Signature of accused Ex.P2 : Bank endorsement Ex.P3 : Office copy of legal notice Exs.P4 & P5 : Postal receipts Ex.P6 : Unserved R.P.A.D., cover Ex.P6(a) : Legal notice at Ex.P6 Ex.P7 : Complaint dtd:13.11.2018 Ex.P8 : Track consignment Ex.P9 : Copy of voters ID Card Judgment 16 C.C.No.6416/2019
List of Witnesses examined on behalf of the defence:
DW.1 : Parvathamma.H List of Exhibits marked on behalf of defence:
- Nil -
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 17 C.C.No.6416/2019 23.07.2021. Comp - Accd - For Judgment
Judgment pronounced in the open court vide separate order.
***** ORDER Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay total fine of Rs.1,25,000/-.
Out of the said fine amount, sum of Rs.1,20,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount of Rs.5,000/- shall be payable to the state as fine amount.
In default of payment of fine amount, the accused shall under go simple imprisonment for 03 (Three) Months.
The bail bond and cash security/surety bond of the accused stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 18 C.C.No.6416/2019 Later, the convictee's counsel filed application Under Section 389(3) of Cr.P.C seeking for suspend the sentence for the reasons stated in the application.
Heard.
In the present case, the
judgment was pronounced and
convicted the accused. In view of the
same, the convictee counsel has
prayed that to suspend the sentence
by appeal period. For the reasons
stated in the application, for the
limited period of prefer appeal only,
the application filed by the accused
counsel under Section 389(3) of
Cr.P.C. is hereby partly allowed and
sentence is suspended till appeal
period only.
The convictee is hereby directed
to execute bond for fine amount of
Rs.1,25,000/.
XXIII ACMM, Bengaluru.
Judgment 19 C.C.No.6416/2019