Bangalore District Court
Smt.A.Nagarathna vs Smt.N.Pushpa on 11 November, 2020
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 11th day of November - 2020
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.17732/2017
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Smt.A.Nagarathna,
W/o.L.Mahesha,
Aged about 46 years,
R/at No.10/2, 8th Main,
7th Cross Down, Bhuvaneswari Nagar,
K.P.Agrahara, Magadi Road,
Bengaluru-23.
(Rep. by Sri.D.N.Ramachandrappa, Adv.)
V/S
Accused : Smt.N.Pushpa,
W/o.Madesha,
Aged about 33 years,
R/at. No.539/A, Revanna
Siddeswara Nilaya, 1st Main Road,
1st Cross, Binnypet Layout,
Bengaluru-23.
(Rep.by Sri.Gopal Singh, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Convicted.
DATE OF ORDER : 11.11.2020.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
Judgment 2 C.C.No.17732/2017
JUDGMENT
The complainant has presented the instant complaint against the accused on 09.06.2017 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheque of Rs.3,30,000/-.
2. The factual matrix of the complainant case is:
The complainant has submitted that, on 03.07.2016 the accused had taken hand loan of Rs.3 lakhs from the complainant for the purpose of purchasing a car for her husband. On the same day, the accused had taken hand loan by way of cash from the complainant. Further the accused had agreed to return the said loan within 10 months with interest at 12% p.a. On 01.05.2017 the accused came to the house of complainant and handed over one post dated cheque bearing No.173391 dated:08.05.2017 for sum of Rs.3,30,000/- drawn on Karnataka Bank Ltd., Rajajinagar Branch, Bengaluru, which covers principal as well as accrued interest and asked the complainant to present it on the due date.
The complainant has further alleged that, on the instruction of the accused, she presented the said cheque for encashment through her banker viz., Syndicate Bank, Magadi Road Branch, Judgment 3 C.C.No.17732/2017 Bengaluru, on 08.05.2017. The same came to be dishonoured as per memo dated:09.05.2017 for the reasons "Funds Insufficient". Thereafter, on 16.05.2017, she gave legal notice to the accused by way of R.P.A.D., the same got served on her on 17.05.2017. Despite that, the accused either not paid the amount covered under the cheque or not caused any reply. Thereby, she committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
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, she herself choosen to examined as PW.1 and got marked Exs.P1 to P9. The PW.1 Judgment 4 C.C.No.17732/2017 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 and answer given by her was recorded. In this case, the accused not choosen to enter into witness box and also not produced any document.
7. Complainant counsel has submitted his detailed written arguments. Accused counsel has not addressed arguments. But submitted his written arguments.
8. On going through the rival contentions, based on the substantial evidence available on record, the following points have been arising for determination:
1) Whether the complainant proves beyond the reasonable doubt that, she paid sum of Rs.3,30,000/- as hand loan to the accused, and in turn, for discharge of legal recoverable debt, the accused issued the Ex.P1 cheque bearing No.173391, dated:08.05.2017 for sum of Rs.3,30,000/- drawn on Karnataka Bank Ltd., Rajajinagar Branch, Bengaluru?
2) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?
3) What Order?
Judgment 5 C.C.No.17732/2017
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.
The PW.1 to prove her case choosen to examined herself and filed affidavit by reiterating the complaint averments in toto, and produced the documents at Exs.P1 to P9, they are:
a) Ex.P1 is the cheque bearing No.173391 issued by the accused for sum of Rs.3,30,000/-
dated:08.02.2017, drawn on Karnataka Bank Ltd., Rajajinagar Branch, Bengaluru.
b) Ex.P1(a) is the alleged signature of accused.
c) Ex.P2 is the Bank Memo dated:09.05.2017.
d) Ex.P3 is the Legal Notice dated:16.05.2017.
e) Exs.P4 & P5 are the Postal receipts.
f) Exs.P6 & P7 are the track consignments.
g) Ex.P8 is the statement of account pertaining to the complainant herein for the period from 28.03.2016 to 24.05.2017 issued by The Karnataka State Co-
operative Apex Bank Ltd., Bengaluru and Judgment 6 C.C.No.17732/2017
h) Ex.P9 is the jewels pledged loan letter pertaining to complainant herein issued by The Karnataka State Co-operative Apex Bank Ltd., Bengaluru.
The PW.1 was subjected to the cross-examination by the advocate for the accused.
11. After detailed cross-examination done by the advocate for accused to the PW.1, the complainant got closed her side. Thereafter, whatever the incriminating evidence made against the accused was read over and explained to her as required under Section 313 of Cr.P.C., wherein, she denied the same and gave her statement that, the notice issued by the complainant were given to the owner of the house. She has gave her defence statement that, complainant only knew to her and from her, she not borrowed any loan nor issued questioned cheque to her. The signature found in the Ex.P1-cheque is not of her and complainant misused the lost cheque and filed the false case. Hence, she not liable to pay the amount covered under the cheque. Though, she stated, she had defence evidence, but not choosen to enter into witness box nor produced any contra documents, under which circumstances questioned cheque came to the possession of complainant.
Judgment 7 C.C.No.17732/2017
12. On going through the rival contentions of the parties, it made clear that, the accused in this case has seriously attack on the claim put forth by the complainant. On going through the materials it discloses, the complainant has brought the present case against the accused based on the questioned cheque at Ex.P1. Therefore, it mandates to draw the presumption as per Sections 118 and 139 of Negotiable Instruments Act. As per Section 118(g), it shall be presume that, unless the contrary is prove, the holder of the cheque, the complainant received the cheque for discharge of legal liability. This presumption is rebuttable. Accordingly, Sections 139 and 138 of Negotiable Instruments Act, it also requires to presume that, cheque was drawn for discharge of liability of drawer, it is presumption under law. Therefore, it made clear that, by virtue of the above said sections stated, it made clear that, it requires to draw statutory presumption in favour of complainant that, in respect of discharge of existence of legally recoverable debt, the accused got issued the Ex.P1-cheque unless and until contrary prove. Therefore, as per those sections, it made clear that, it is the initial onus on the accused to prove his case based on the principles of 'Preponderance of Probabilities'.
Judgment 8 C.C.No.17732/2017 It is require to cite the decision reported in AIR 2010 SCC 1898, in a case between Rangappa V/s Mohan. Wherein, the Hon'ble Apex Court pleased to observe that, the obligation on the prosecution may be discharged with the help of presumption of law or facts unless the accused adduce evidence showing the reasonable probability of non-existence or presumed fact. Wherein also it was pleased to observed that, the accused can prove the non-existence of consideration by raising probable defence. If accused is able to discharge the initial onus of proof of showing that, the existing of consideration was improbably or adverse or the same was illegal, the onus would shift to the complainant, who will be obliged to prove it as a matter of fact, and upon its failure to prove would dis-entitle his to grant the relief on the basis of Negotiable Instruments Act. The burden on the accused of proving the non-existence of consideration can either direct or by bringing on record the preponderance of probabilities by referring to the circumstances upon which, she relies could bare denial of passing consideration apparently does not appears to be any defence. Something which is probable has to be brought on record for getting benefit of shifting the onus of proving to the complainant. To disprove the presumption, the accused has to bring on record such facts and circumstances upon the Judgment 9 C.C.No.17732/2017 consideration of which the court may either believe that, consideration did not exist or its non-existence was so probable that, a prudent man would, under the circumstances of the case, act upon that, it did not exist. Therefore, it made clear that, the accused need to take the probable defence mere denial is not enough.
That apart, in a decision reported in ILR 2006 KAR 4672, in a case between J.Ramaraj V/s Hiyaz Khan. Wherein, it was pleased to observed that, mere denial of issuing cheque, whether is sufficient to discharge the initial burden is to be looked into. In that dictum, it was pleased to held that, mere denial of issuing cheques would not be sufficient as it is time and again noted that, once the cheque issued duly signed by the accused, the presumption goes against her as per Section 139 of Negotiable Instruments Act.
13. On going through the provisions and dictums referred supra, it made clear that, whereas the presumption must prove that, guilt of accused beyond the reasonable doubt. The standard or proof so as to prove a defence on the part of the accused is 'Preponderance of Probabilities'. Inference of 'Preponderance of Probabilities' can be drawn, not only from the materials brought Judgment 10 C.C.No.17732/2017 on record by parties, but also by reference to the circumstances upon which he relies.
14. On going through the above authorities as well as dictums, it made clear that, the initial presumption shall be drawn in favour of complainant that, questioned cheque was issued by the accused for discharge of legal liability unless and until contrary prove. No doubt, it is the initial burden on the accused to prove her defence, thereby require to rebut the statutory presumption as well as the facts and circumstances raised by the complainant based on the Ex.P1-cheque is moved by the accused is discharge of existence of legally recoverable debt. As already stated that, the accused has not entered in to witness box to prove her probable defence and she only choosen to cross-examine the PW.1 nor produced any documents before this court.
However, it is an appropriate to cite the decisions of the Hon'ble Supreme Court in (2008) 2 Supreme Court Cases (Criminal) 166 (Krishna Janardhan Bhat V/s. Dattatraya G Hegde) and 2010 AIR SCW 2946 (Rangappa V/s. Mohan).
"The accused need not enter into witness box and he could rebut the presumption envisage under Section 139 of Negotiable Instruments Act by setting up a probable case. As such, there is no strict rule Judgment 11 C.C.No.17732/2017 that, the accused should enter into the witness box in support or proof of his defence. The accused has got every right to prove his defence from the cross- examination of PW.1 or the materials already brought on record. It is also held that, the standard of evidence be to led by the accused is preponderance of probabilities and no proof beyond reasonable doubt. On the contrary, for the complainant he should prove his case beyond all reasonable doubt".
15. As per the said dictum, the accused need not require to enter in to the witness box to prove her probable defence, but she can prove her defence by way of cross-examining the PW.1 and relied upon the documents of the complainant. From the point of above dictum, the non entering into the witness box by the accused is not a ground or hindrance to her probable defence. Therefore, non entering into witness box by the accused itself is not a fatal, but she choosen to face her defence by way of cross- examining the PW.1 coupled with gave her statement under Section 313 of Cr.P.C. Therefore, as it is the initial burden on the accused to prove her probable defence, in order to create reverse burden on the complainant, it requires to appreciate the very evidence placed by the accused through the mouth of PW.1 based on oral as well as documentary evidence.
Judgment 12 C.C.No.17732/2017
16. In this case, as observed earlier, the accused not taken the risk to prove her probable defence by entering in to witness box. Only choosen to cross-examine the PW.1. Therefore, whatever the defence suggested to the PW.1 is very much necessary to appreciate in the present case on hand, to create reverse burden on the complainant. It was the specific case of the complainant that, on 03.07.2016, the accused for the purpose of purchasing car for her husband requested and borrowed loan on the same day for the tune of Rs.3 lakhs in cash and agreed to repay with interest at 12% p.a. within 10 months. On 01.05.2017 including principal and interest for repayment of money, the accused gave questioned cheque at Ex.P1 dated:08.05.2017 for the tune of Rs.3,30,000/- and on her instruction, when complainant has presented the said cheque for encashment, the same came to be dishonoured, thereafter, notice were issued by the complainant were served on her, she not complied the same.
17. On carefully scanning of the cross-examination done to PW.1 throughout, the accused has not suggested any defence as to how the questioned cheque at Ex.P1 came to the possession of complainant other than the averments and allegations made by the complainant in her pleading as well as her reassertion made in the witness box. Whatever the evidence deposed by the PW.1 Judgment 13 C.C.No.17732/2017 is also not denied by the accused, but at the fag end of the cross- examination, few suggestions discloses, the complainant has no financial capacity and not lent loan as alleged and accused not issued questioned cheque for its repayment. Except, the said suggestion there were no contention raised by the accused by way of suggestion made to PW.1, under which compelling circumstances the admitted cheque of the accused at Ex.P1 were came on to the hands of complainant. Even during the course of cross of PW.1, due execution and issuance of questioned cheque by the accused in favour of complainant is also not been suggested. However, it require to appreciate the evidence of PW.1 including defence raised by the accused by way of suggestion.
"ಜಜಲಲ-2016 ರ ಒಒದಜ ವರದ ಮಜಒಚ ಆರರರಪ ನನನಲ 3 ಲಕ ಸಲ ಕರಳದದರಜ. ನನಜ ಲರವದರವ ವವವಹರ ಮಡಜತತರನ ಎಒದರ ಸರಯಲಲ.
ಆರರರಪಯ ಅತತ ಮನ, ನಮ ದ ಅಲ ಆರರರಪ
ಮ ಮನಯ ಹಒದ ಇದಜ
ಆಗಗಗ ನನಗ ಪರಚಯವಗರಜತತರ . ಹಗಗ ಸಲ ಕರಳರಜತತರ. ನನನ ಮಗ ನವರಶನ ಖರರದಸಲಜ ನನನ ಬಳ 3 ಲಕ ಕರಳದದರಜ. ನನಜ ಎರಡಜ ಮಜಕಕಲಜ ಲಕವನಜ ನ ಚನನಭರಗಳನಜ ನ ಅಡ ಇಟಜ ದ ಹಗರ ಟ ಸಲ ಪಡದದಜ ರರರ25 ಸವರ ನನನ ಕಲಸದ ಉಳತಯದ ಹಣ ಆಗರಜತತದ. ಚನನಭರಣ ನನರ ದನಒಕರ28.03.2016 ಕಕ ಅಡ ಇಟಟರಜತತರನ. ನವರಶನಕಕ ಸಒಬಒಧಪಟಟ ದಖಲ ಸರ ಇಲಲ ಎಒಬ ಕರಣಕಕ 15 ದನದ ಒಳಗ ನನನ ಮಗ Judgment 14 C.C.No.17732/2017 3 ಲಕ ನನಗ ಮರಳಸದದರಜ. ನವರಶನ ಖರರದಸಲಲಲ. ಆ ಹಣವನಜ ನ ಮರಳ ಬವಒಕಗ ಕಟಟ ಒಡವ ಬಡಸಕರಳಳಲಲಲ. ನನನ ಮಗ ಬರರ ನವರಶನ ನರರಡಜತತದನ ಎಒದಜ ತಳಸದನಜ. ಆದರ ಬರರ ನವರಶನ ಖರರದ ಮಡಲಲ. ಒಒದಜ ವರರದ ಬಳಕ ಚನನಭರಣ ಬವಒಕನಒದ ಬಡಸಕರಒಡದನಜ. ಸದರ ವವವಹರಕಕ ಸಒಬಒಧಪಟಟ ದಖಲ ಇದ. ಬವಒಕ ಸಲದ ಹಣ ರರರ25 ಸವರ ಮತ ತ ನನನಲ ಇದದತಜತ. ಆ ರರತ ಯವದರ ಹಣಕಸಜ ಸಲ ಪಡದಲಲ ಮತಜತ ನಗದಜ ನನಜ ಹರಒದರಲಲಲ ಎಒದರ ಸರಯಲಲ."
18. On going through the cross-examination of PW.1, she specifically deposed that, one week earlier to July, 2016 the accused requested for the loan of Rs.3 lakhs. The said testimony of PW.1 is not denied by way of any suggestion. The PW.1 categorically denied the suggestion made to her that, she was doing money lending business. More categorically she stated, the house of the mother-in-law of accused were situated behind the house of complainant, to where the accused oftenly used to visit, therefore, she came to known her. The knowingness of complainant and accused each other is not been disputed. The complainant stated, since she used to came to her mother-in-law's house, she asked for the loan. Even she deposes, how she mobilized the funds. The PW.1 has deposed that, her son for the purpose of purchase the house, asked money for Rs.3 lakhs from Judgment 15 C.C.No.17732/2017 her. Therefore, she mobilized the fund by way of pledge her golden ornaments and arranged Rs.2,75,000/- and remaining amount of Rs.25,000/- were her savings. More clarify that, on 28.03.2016 she pledged her jewels and since the property documents were not correct, whatever the amount taken by her son for Rs.3 lakhs from her, were returned to the complainant within 15 days of his receipt and no property were purchased. More she clarifies, she not got released the pledged ornaments by returning the said money, since her son was looking for purchase a site. She repeatedly stated that, her son was not purchased any site and after lapse of one year, she got released her pledged ornaments from the bank. It was suggestion made to her that, as deposed by the PW.1, she was not borrowed any loan from complainant and had no savings amount in her hand, but PW.1 has denied the same. To show that, PW.1 has mobilized the fund as such, she choosen to produced her loan document as per Ex.P9, which is none other than the receipts issued by Karnataka State Co-operative Apex Bank Ltd., on 28.03.2016. On close perusal of the same, it revel the complainant had pledged her ornaments to the bank on 28.03.2016 itself.
19. That apart, she also produced another statement at Ex.P8, which stood in her name also revealed that, on 28.03.2016 sum Judgment 16 C.C.No.17732/2017 of Rs.2,75,000/- were remitted to her account. The said 2 documents clearly manifest the mobilization of fund of Rs.2,75,000/-. She never stated that, she arranged source of money from other source, as she deposed, she got produced Exs.P8 and P9, which clearly manifest the borrowing of loan from her bank on 28.03.2016. Simply the accused has denied, no loan borrowed and if at all borrowed, it was for her personal purpose to purchase property. The PW.1 has repeatedly stated that, she, her son has not purchased any property by obtaining loan since, property documents were not correct, her son returned the said money and she kept that money, when accused asked the same, she gave it to her, remains unchallenged. Even there is no suggestion made to PW.1 that, accused was not requested as such, and not lent loan to the accused by mobilizing so. Simply denied, the complainant has not borrowed any such loan and had no savings cash is not enough. The PW.1 in her cross- examination has withstood her contention by deposing that:
"ದನಒಕರ03.07.2016 ರಒದಜ ಆರರರಪಗ ರರರ3 ಲಕ ನಗದಗ ನನನ ಮನಯಲ ಕರಟಟದನಜ. ಆ ಹಣ ಕರಡಜವಗ ಸರರಮವರದ ದನ ಇತಜತ , ಆಕ ಅದಕರ ಕ ಮದಲಜ ಎರಡಜ ದನದ ಮದಲಜ ಶನವರ ಹಣವನಜ ನ ಕರಳದದರಜ. ಆರರರಪ ತನನ ಗಒಡನಗ ಕಲಸ ಇಲಲ, ನನಜ ಸಲ ನರಡದಲ ಸಹಯ ಆಗಜತತದ. ಕರಜ ಖರರದಸಲಜ ಕರಳದದರಜ. ನನಜ ಆ ಕರನಜ ನ Judgment 17 C.C.No.17732/2017 ಯರಒದ ಎಲ ಖರರದ ಮಡಜತತಳಒದಜ ವಚರಸಲಲ. ಆರರರಪ 10 ನ ವರರಕ 12 ಪಪತಶತ ಬಡಡ ಸರರಸ ಕರಡಜವದಗ ತಒಗಳಲ ಆ ಹಣವನಜ ತಳಸದದಳಜ. ಸಲ ನರಡದ ದನದಒದಜ ಆಕಯಒದ ಯವದರ ದಖಲ ಬರಯಸಕರಒಡಲಲ."
20. The PW.1 categorically deposed, she gave Rs.3 lakhs on 03.07.2016- Monday in her house. The advocate for the accused along with written argument has furnished the xerox copy of the calender pertaining to the year 2016. On going through the same, it disclosed that, it wan on Sunday. Thereby try to disputed the alleged lent of loan. The Pw1 may said it was on Monday, and specifically told the date 03.07.2016. The accused has not disputed the date, but try to focus on the day wrongly deposed by the PW.1. In this case, as discussed earlier and later, the accused has failed to rebut the case of the complainant, hence, wrong mentioning of the day, is not hindrance to disbelieve the case of the complainant. The memory of the people are very short. Each and every date and day, not expected to remember years together. If the ac only on the ground attach on the evidence, it is different. In the case on hand, what ever the reassertion made by the PW.1 in the witness box is not countered by the accused. Hence, mere wrong say the day, is not enough to disbelieve the claim of the complainant, unless the accused has rebutted. That Judgment 18 C.C.No.17732/2017 apart, the PW.1 repeatedly said, 2 days earlier she requested for money. Accused also told her that, since her husband has no work to purchase car, she borrowed the loan. The PW.1 deposed, she not enquired from whom the accused's husband got purchased the car. She also deposes, accused undertakes to repay the said loan within 10 months with interest at 12% p.a. and she had not got executed any loan document. Whatever the say of PW.1, it was not denied by the accused side by way of any suggestion. Thereby, whatever the evidence led by PW.1 is been remains unchallenged. Thereby, the complainant has withstood her contention, as to alleged request made by the accused and issuance of loan to her. No doubt, in the pleading she stated, on the very same day, she lent loan, but in her cross-examination, she deposed, 2 - 3 days earlier from the borrowal of loan she requested the said discrepancy is also not suggested to the PW.1 and thereby not questioned. Hence, the said discrepancy would not attack on the claim of complainant from any point of view.
21. The PW.1 in her cross-examination has stated that, except the Ex.P1(a) signature other writings in the cheque at Ex.P1 were typed. She stated, she studied SSLC and knew how to fill the cheque. She also deposed, she does not know the clarification of Judgment 19 C.C.No.17732/2017 the accused, but stated, she was doing tailoring work. So far as cheque is concern the PW.1 has deposed that:
ನ ದನಒಕರ01.05.2017 ರಒದಜ ನರಡದದರಜ. ಆಗ "ಆರರರಪ ಸದರ ಚಕಕನಜ ಚ ಮಡದ ಚಕಜ ನನಜ ಬರಳಚಜ ಕ ಬರಡ, ಕಲ ಬರಹ ಮಡದ ಚಕಜ ಕ ಕರಡಜ ಎಒದಜ ಕರಳಲಲ. ನನನ ಹಸರನ ಇಒಗಲರಷಅಕರಗಳಜ Nagarathna ಆ ಅಕರ ನ ನನಜ ಆಗ ಗಮನಸಲಲ. ಆ ನಪ-1 ಚಕನಲ ಕಒಡಜ ಬರಜತತದ. ಅದನಜ ಚಕಜ ದ , ಕಪಸ ಚಕ ಪಡಯಬರಕಒಬ ಅನಜಭವ ನನಗಲಲ.
ಕ ಓಪನ ಚಕಕಗದಜ
ನಪ-1(ಎ) ಸಹಯನಜ
ನ ಆರರರಪ ನನನ ಸಮಕಮ ಸಹ ಮಡದರ. ನಪ-1
ಚಕಜ ದ , ಅದಜ ಈಗ ಚಲತಯಲಲಲ ಎಒದರ ನನಗ
ಕ ಬಹಳ ಹಳಯದಗದಜ
ಗರತತಲಲ, ಆರರರಪ ನಮಮ ಮನಗ ಬಒದಲಲ, ಅದಕಕ ನನನ ಮಜಒದ ಸಹ ಮಡಲಲ ಹಗರ ಚಕಕನಜ ನ ನನಗ ನರಡಲಲ ಎಒದರ ಸರಯಲಲ . ಆರರರಪ ಸಲ ಪಡಯಜವಗ ಬವಒಕ 12 ಬಡಡ ಸರರಸ 10 ತಒಗಳ ಒಳಗ ಕರಡಜತತರನ ಎಒದಜ ತಳಸದದರಜ. ನವಬಬರಜ ಕಜಳತಜ ಬಡಡ ಲಕಕಚರ ಮಡಲಲ."
22. On meticulous perusal of the say of PW.1, she categorically deposes, on 01.05.2017 accused gave cheque to her as contended in her pleading. The said factum is also not denied by way of any suggestion. Even the signature found in Ex.P1(a) is also not denied by the accused by way of suggestion to PW.1. The said cross-examination also revealed that, whatever the typed fillings made in cheque is also not been disputed, under which circumstances the typed cheque came to the hands of complainant. The PW.1 has deposes, her name in English as Judgment 20 C.C.No.17732/2017 typed in the cheque. Only suggestion made to her that, it was open cheque and no need to collect the same, to the same she deposed that, she had no such experience as such. More categorically she deposes, in her presence the accused got signed as Ex.P1(a), even the same is also not denied by the accused. The PW.1 deposes, she does not know, whether the questioned cheque was old are one and now not in-force. Then, how the said cheque is validity is also not been suggested to PW.1. Simply made suggestion to PW.1 that, accused not came to her house and in her presence not signed nor issued cheque to PW.1. The PW.1 had denied the same. When the cross- examination of PW.1 reveals of Ex.P1-cheque, the accused side has not made any suggestion to PW.1, as to under which compelling circumstances questioned cheque at Ex.P1 by mentioning the amount of Rs.3,30,000/- other than the case set up by the complainant came to the hands of complainant is not been suggested to the PW.1. Even PW.1 has deposed, the accused undertakes to repay the loan amount within 10 months with interest at 12% p.a. She deposes, both wee not sit together and made any calculation. The said evidence of PW.1 is also not denied by way of any suggestion. Thereby, the PW.1 has withstood her contention. Hence, as appreciated above, the PW.1 Judgment 21 C.C.No.17732/2017 has proved her case by withstood successfully for cross- examination.
23. During the course of cross of PW.1, it was asked by the accused as to residence of accused. PW.1 has deposed, earlier accused was resides in the cause title address, wherein, the same is mentioned in the legal notice. PW.1 has deposed that, when notice came to the accused, she got changed her address. The PW.1 has deposes, as pointed out by the advocate for accused that, in the private complaint as well as legal notice, the addresses are over written is been seen. On meticulous perusal of the same it discloses, in the address of the accused as mentioned in the cause title, Door No.'A' is over written. On going through the Ex.P3 legal notice, it also done same. By making such correction, how it is the adversely affected the interest of the accused is not been suggested to PW.1. In order to show that, Ex.P3 legal notice issued to the accused as per postal receipts produced at Exs.P4 and P5 by way of speed post, the complainant had produced track consignment particulars as per Exs.P6 and P7.
24. On going through the same, it discloses, the legal notice so issued by the complainant to both the address of the accused got Judgment 22 C.C.No.17732/2017 delivered. No doubt, in the legal notice and cause title address of the accused, she has mentioned one address of the accused, but she got issued legal notice to the 2 addresses. The postal authority report clarifies both the notices were delivered. The accused has not suspected as to the genuineness of the addresses made mentioned therein and service of legal notice as such. It is significant fact to note that, while record 313 Cr.P.C. statement, the accused has categorically admitted, whatever the notices issued by the complainant were taken by the house owner of the accused. Unless the same was intimated by the house owner, the accused does not know about the issuance of legal notice, therefore, it has to be presume that, as found in the track consignment report t Exs.P6 and P7 legal notice was duly served on the accused, she not cause any reply nor pay the amount covered under the cheque. The complainant has complied the required mandatory provision under Section 138(a) to (c) of Negotiable Instruments Act.
25. Throughout the cross-examination of PW.1, there is no suggestion made to PW.1, under which circumstances singed questioned cheque of the accused came to the hands of complainant. But simply go on cross-examination to PW.1 without any specific defence, thereby PW.1 has withstood her contention Judgment 23 C.C.No.17732/2017 by denying the formal questions suggested to her. Even in the cross-examination no suggestion were made by denying the signature of the accused as found in Ex.P1-cheque at Ex.P1(a). Contrary to the same, while record 313 of Cr.P.C. statement, the accused for the reasons better known to her go on to extent of denied her signature as found in cheque. Therefore, the defence suggested to PW.1 and statement given by the accused are contradicts and it means that, the accused has no defence, but only for defend the matter, as this court has given opportunities in the best interest of justice to clarify this court, under which compelling circumstances questioned cheque was issued by the accused to the complainant contrary to the case of complainant and statutory presumption, the accused has utterly failed to demonstrate the same.
26. Even mere denial is also not made as to the issuance and execution of cheque at Ex.P1 by the accused to the complainant. Once, the cheque was issued duly signed by the accused, the presumption goes against her as per Section 139 of Negotiable Instruments Act that, questioned cheque was issued by the accused for discharge of legal liability. Though sufficient opportunities were given to the accused, but she has failed to rebut the statutory presumption as well as the case put forth by Judgment 24 C.C.No.17732/2017 the complainant. Even she not entered into witness box nor produce any contra documents in order to avoid the payment of cheque amount payable to the complainant. The PW.1 has withstood for cross-examination successfully, the accused has failed to discharge initial burden. Hence, it is the consider opinion of this court that, by virtue of Sections 118 and 139 of Negotiable Instruments Act, it made clear that, coupled with drawing initial statutory presumption in favour of complainant, the complainant also proved that, in respect of repayment of loan and interest the accused got issued the questioned cheque at Ex.P1-cheque for sum of Rs.3,30,000/- to the complainant. Though she had obligation to pay that amount and got issued the questioned cheque on due execution, she failed to maintain sufficient funds in her account. Despite, caused legal notice by the complainant demanding her to rectify her mistake, even prosecuted the matter all along, she not choosen to pay the amount covered under the cheque and set the right. Therefore, the accused has utterly failed to prove her probable defence and complainant on the other hand successfully proved her case beyond the reasonable doubt.. Therefore, the accused has to be punished by imposing fine sentence with regard to cheque amount.
Judgment 25 C.C.No.17732/2017
27. There is no substance in the probable defence of the accused, contrary to the complainant has discharged her burden and proved the guilt of the accused. Therefore, keeping in the mind of the object of introduction of Negotiable Instruments Act, it appears this court, it is fit case to convict the accused coupled with the amount covered under the cheque at Exs.P1 at Rs.3,30,000/-. The same offence has been continued till this day, therefore, the complainant has successfully established the guilt of the accused, regarding commission of offence punishable under Section 138 of Negotiable Instruments Act. The complainant has complied the mandatory requirement and established her case successfully. Despite that, the accused has not set right the wrong committed by her as per Section 138 of Negotiable Instruments Act.
28. As discussed above by way of furnishing clear, convincing, corroborative, oral as well as documentary evidence has proved that, the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. Therefore, looking into the transaction, it is the considered opinion of this court that, the accused has taken bald, inconsistence defence without any base and failed to prove her improbable defence. Contrary, the PW.1 has established her case beyond the reasonable doubt Judgment 26 C.C.No.17732/2017 through oral as well as documentary evidence. Thereby, unnecessarily cause the complainant to approach this court of law, therefore, the accused is liable to be punished by way of imposing fine sentence. Therefore, the accused is to be convicted by imposing the cheque amount. Out of the said fine amount, sum of Rs.3,25,000/- shall be payable to the complainant as compensation and remaining amount of Rs.5,000/- shall be payable to the state as fine amount. Accordingly, if the accused fails to pay the whole fine amount, the accused shall undergo simple imprisonment for 12 months. Thereby, one more opportunity has provided to the accused to comply the order. Otherwise, the very purpose of filing complaint will be defeated. As discussed above, the complainant has proved her case beyond reasonable doubt. In the result, the accused shall sentence to pay the fine amount as detailed in the order portion. Accordingly, Point Nos.1 and 2 are answered in the Affirmative.
29. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
ORDER Accused found guilty for the offence punishable under Section 138 of Negotiable Instruments Act.
Judgment 27 C.C.No.17732/2017 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 fine of Rs.3,30,000/-.
Out of the said fine amount, sum of Rs.3,25,000/- 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 pay the fine amount, the accused shall under go simple imprisonment for 12 (Twelve) 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 11th day of November - 2020) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : A.Nagarathna Judgment 28 C.C.No.17732/2017
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 Exs.P6 & P7 : Track consignments Ex.P8 : Statement of account Ex.P9 : Jewels pledged loan letter
List of Witnesses examined on behalf of the defence:
- None -
List of Exhibits marked on behalf of defence:
- Nil -
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 29 C.C.No.17732/2017
11.11.2020.
Comp -
Accd -
For Judgment
Case called out.
Complainant and accused are
absent. No representation from both side
advocates, despite, web-host the case
proceedings and intimate the date of
pronouncement of judgment. Hence, as
per Section 353(6) of Cr.P.C. the following judgment is pronounced in the open court vide separate order.
***** ORDER Accused found guilty for the offence punishable under Section 138 of Negotiable Instruments Act.
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 fine of Rs.3,30,000/-.
Out of the said fine amount, sum of Rs.3,25,000/- 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.
Judgment 30 C.C.No.17732/2017 In default of pay the fine amount, the accused shall under go simple imprisonment for 12 (Twelve) 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.