Bangalore District Court
Sri R. Rakesh Babu vs Smt. Malarkudi on 23 February, 2022
IN THE COURT OF XXXIII ADDL. CHIEF
METROPOLITAN MAGISTRATE, MAYO HALL UNIT,
BENGALURU
: PRESENT :
M.Vijay, BAL, LLB.
XXXIII ADDL.CHIEF METROPOLITAN MAGISTRATE,
BENGALURU.
DATED IS THE 23RD DAY OF FEBRUARY, 2022.
C.C.No.50412/2015
COMPLAINANT : Sri R. Rakesh Babu,
Son of late. Ramaiahh Reddy,
Aged about 24 years,
R/at No.204, 3rd Floor,
Durgalakshmi Apartment,
Maruthinagar,
kaggadasapura Main Road,
Bangalore560075.
.Vs.
ACCUSED : Smt. Malarkudi
Wife of Sudhakar,
Aged about 38 years, R/at No.389, 14,
2nd Main, Sriramanagar,
Bangalore560017.
And also at:
Smt. Malarkudi
D/o kashalya Devi,
Aged about 38 years, R/at FE,37
3rd Cross, Sriramanagar, HAL,
Bangalore560017.
2
C.C.No.50412/2015
JUDGMENT
The complainant has filed this private complaint U/s.200 of Cr.P.C., against the accused for the offence punishable U/s 138 of Negotiable Instrument Act.
The factual matrix of the case are as follows:
2. The complainant averred that, the accused was his tuition teacher on this acquaintance, the accused approached him in the month of April 2013 for financial assistance of Rs.8,00,000/, accordingly, considering the request of accused, he allegedly advanced sum of Rs.8,00,000/ to the accused on 10.04.2014 by way of cash, on it receipt, the accused promised him to repay it within three months, however, after expiry of three months, when he requested for repayment, the accused issued cheque bearing No.852773 dated 16.09.2013 for sum of Rs.8,00,000/, drawn on Syndicate Bank, Vimanapura, Airport road, Bangalore, with an assurance that, the cheque would be honored, on it presentation.
3. Based on the assurance of the accused, the complainant claims to have presented the above cheque for realization through its banker SBI, 3 C.C.No.50412/2015 Jeevanbheemanagar, Bangalore, but, it was returned unpaid "for payment stopped by the drawer" dated 17.09.2013. Based on that, the complainant was constrained to issue legal notice on 21.09.2013, calling upon the accused to pay the cheque amount through RPAD, same was returned unserved with a shara on "door locked", "intimation delivered", therefore, its nothing but deemed to have been served, accordingly, the complainant alleged that, despite service of legal notice, the accused failed to pay the cheque amount, accordingly, alleges that, the accused has committed an o/p/u/s.138 of NI.Act.
4. The court took cognizance for an offense punishable under Sec.138 of N.I. Act, based on the complaint, sworn statement and documents filed by the complainant ordered to be registered a criminal case against the accused for an offense punishable under Sec.138 of N.I. Act.
5. In pursuance of summons, the accused appeared through his counsel and she was enlarged on court bail. Plea has been recorded, accused pleaded not guilty and claims to be tried, the complainant in order to prove his 4 C.C.No.50412/2015 case got examined himself as P.W.1 and relied upon Ex.P.1 to P.12. On closure of the complaint side evidence, the accused was examined U/s 313 Cr.P.C,. The accused denied incriminating materials on record and contends that, she borrowed Rs.1,00,000/ from the mother of the complainant in the year 2011, at that time, she issued her signed blank cheque to one Nirmala ie., mother of the complainant, that has been repaid along with interest up to Rs.1,55,000/, even then, the mother of the complainant demanded to pay additional amount of Rs.1,45,000/, accordingly in this regard, she lodge a complaint against mother of the complainant before the police, thereafter, the complainant by misusing the cheque issued to his mother has presented the cheque and filed this false case. In support of her contention, the accused examined herself as D.W.1 and placed reliance on Ex.D.1 to 10.
6. Heard both the sides. The complainant relied upon following decisions (2019) 18 SCC 106, AIR 2018 S 3173, AIR 2019 SC 1876, AIR 2018 SC 3601.
5C.C.No.50412/2015
7. On the other hand, the accused relied upon (2019) 5 SCC 418, (2015) 1 SC 99, 2014 AIR SCW 2158, 2011 Crl.L.J.552, 2001.
8. Perused the materials on record, the following points arise for my determination.
1. Whether the complaint proves beyond all reasonable doubt that, accused has committed an o/p/u/s 138 of Negotiable Instruments Act?"
2. What Order?
9. My findings to the above points are follows;
Point No1: In the Affirmative Point No.2: As per final order for forgoing;
REASONS
10. Point No.1: The complainant alleged to have advanced sum of Rs.8,00,000/ by cash on 10.04.2013 to his tuition teacher, ie., the accused by way of cash, towards discharge of the said hand loan, the accused allegedly issued cheque bearing No.852773 dated 16.09.2013 for sum of Rs.8,00,000/, in his favour, on it presentation, the above cheque dishonored for "payment 6 C.C.No.50412/2015 stopped by the drawer" dated 17.09.2013. Based on that, claims to have demanded the accused through legal notice dated 21.09.2013 same was returned as door locked, which is according to him, it is deemed to have been served, despite of its service, the accused neither paid the cheque amount nor reply to his notice, accordingly this complaint.
11. Per contra, the accused denied the alleged loan transaction as well as issuance of cheque in question, towards discharge of legally enforceable debt as claimed by the complainant. Further, the accused denied the service of legal notice and contended that, he borrowed Rs.1,00,000/ in the year 2011 from the mother of the complainant i.e., Smt.Nirmala, at that time, the mother of the complainant had obtained her signed blank cheque, she repaid Rs.1,55,000/, even then, the mother of the complainant demanded excess amount, hence, she lodged a complaint to the police, on this grudge, the mother of the complainant filed this false case through her son. So, considering the rival contention, it is crystal clear that, the accused specifically denied the service of legal notice, existence of legally enforceable debt and issuance of 7 C.C.No.50412/2015 cheque in question towards discharge of legally enforceable debt.
12. So, it is burden on the complainant to prove the compliance of section 138A to C as well as the existence of legally enforceable debt issuance of cheque for sum of Rs.8,00,000/ in his favour by the accused.
13. The complainant in order to prove, the service of legal notice got examined himself as P.W.1 and stated that, on 21.09.2013 he caused legal notices to two different addresses of accused through RPAD as mentioned at Ex.P.4 same were returned as unserved as per Exs.P.5 to 8 as "door lock" "intimation delivered"
which, nothing but, deemed to have been served. Accordingly, he claims that, he complied the statutory provision section 138B of NI.Act. The accused denied the same and cross examined the P.W.1, wherein, she suggested that, the house number as well as cross road number of her house has been wrongly mentioned. For that the accused relied upon Ex.D.10 copy of Aadhar, same has denied by the P.W.1 and relied upon Ex.P.4,7,8.8
C.C.No.50412/2015
14. On careful perusal of the postal returned covers, the notices sent to the first address i.e., FE37, 3rd cross, Sriramanagar, HAL, Bangalore, returned as a "refused" and notice sent to second address i.e., No.389, 14 th second main, Sriramanagar, Bangalore was returned as "door lock" so, both these notices admittedly not returned for incorrect address or no such person, but, it is only contention of the accused that, the cross and house number of accused address wrongly shown as 3 rd cross in Ex.P.7, but on the same address, the court summons was served upon the accused and she appeared before the court, therefore, the claim of incorrect address and her address mentioning the wrong cross does not itself cannot be construed that, it is wrong address, because the house number has been correctly mentioned as FE37 and identity of the accused is not in dispute. Therefore, as per the shara of Ex.P.7 and P.8, the notice has sent to the address of the accused was returned as door locked and refused, which is nothing but deemed to have been served as per section 27 of General Clause Act, and also the court summons was duly served upon the accused for the very same address and she put appearance through her advocate, therefore, the question of wrong address does 9 C.C.No.50412/2015 not arise and it is burden on the accused to prove that, the notice has not served upon her despite it was addressed correctly to her residential address. Therefore, the connection of non service of legal notice cannot be acceptable. As such, the accused has complied section 138B, that within time caused legal notice and it was served upon the accused. Accordingly, the complainant has complied section 138A to C of NI.Act.
15. So far as, existence of legally enforceable debt is concerned, the complainant relied upon Ex.P.1 cheque bank endorsement and reiterated that, the accused borrowed sum of Rs.8,00,000/ from him on 10.04.2013 by way of cash, towards repayment of the same, Ex.P.1 cheque issued for sum of Rs.8,00,000/, but it was returned unpaid for "payment stopped by the drawer", the accused subjected the P.W.1 for cross examination, wherein, he denied the borrowal of loan of Rs.8,00,000/ from the complainant and issuance of Ex.P.1 cheque in favour of the complainant, but, she suggested that, Ex.P.1 issued to the mother of the complainant for Rs.1,00,000/, as a security, that has been misused. However, the P.W.1 denied the same. That apart, the 10 C.C.No.50412/2015 accused in her cross examination, has admitted that, Ex.P.1 cheque and signature on the cheque belongs to her, so, though she denied the existence of legally enforceable debt, but, once she admits, the cheque relates to her account and signature on the cheque is that of her, the presumption shall be drawn in favour of the complainant as per the decision relied by the complainant ie., Rohitbai Jeevanlal Patel V/s State of Gujarath and another AIR 2019 Supreme Court 1876, the presumption shall be drawn in favour of the complainant u/s 139 R/w 118A of NI.Act, that until the contrary is proved, the accused issued Ex.P.1 cheque towards discharge of legally enforceable debt, the above ratio has been laid by the Hon'ble Apex Court by reaffirming the decision of Hon'ble Apex Court between Rangappa V/s Mohan;
"Once the cheque relates to the account of the accused and he accept and admit the signature on the said cheque, then initial presumption as contemplated under Sec.139 of N.I. Act has to be raised by the court in favour of the complainant. The presumption referred 11 C.C.No.50412/2015 to in Sec.139 of N.I.Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption."
16. Accordingly, the presumption has been drawn in favour of the complainant that, the accused towards discharge of legally enforceable debt Ex.P.1 cheque issued in favour of the complainant for sum of Rs.8,00,000/. However, as held supra, the presumption envisaged U/s 139 of NI.Act. Is rebutable in nature, therefore, the onus is on the accused to rebut the presumption that, the claimed debt did not exist in between her and complainant and Ex.P.1 cheque not issued in favour of the complainant, but, it was issued to the mother of the complainant for only Rs.1,00,000/ as a security in the year 2011.
17. At this stage, it is worth to note, the decision of Hon'ble Apex Court about requirement for rebut the presumption drawn U/s 139 of NI.Act., ie., Sumethi Viz Vs. M/s. Paramount Tech. Fab. Industries, held that, 12 C.C.No.50412/2015 " To disprove the presumption, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt didn't exist or their non existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they didn't exist".
18. The accused in order to discharge the onus mainly focused on financial capacity of the complainant, in other words, the accused challenged the financial capacity and to prove her defense ie., transaction between her and mother of the complainant, she relied upon Ex.D.1 to D.9, before appreciating the evidence on record, it is worth to note the arguments of both the sides.
19. The learned counsel for the accused vehemently argued that, as per the complaint, the accused had approached him in the month of April 2013 for 13 C.C.No.50412/2015 Rs.8,00,000/ and cheque in question Ex.P.1 was issued on 16.09.2013, but, prior to presentation of the cheque, the accused lodged complaint against the mother of the complainant as per Ex.D.1 to D.6, thereafter, ie., within one week from the date of complaint dated 14.08.2013, the complainant has presented Ex.P.1 cheque by misusing cheque issued for security to his mother, hence the claimed debt did not exist between the parties. Besides that, the accused challenged financial capacity of the complainant to advance sum of Rs.8,00,000/, despite of it, complainant not produced any document to show that, he had source of income, even though the statement of account produced by the complainant which are gold loan account which clearly establishes, the loan obtained by the complainant himself. Therefore, the complainant failed to prove his source of income to lend the sum of Rs.8,00,000/, on this point, he relied upon decisions ie., Basavalingappa V/s Mudibasavalingappa, K.Subramanya V/s K.Damodaranaidu, the complainant ought to have prove that, he had requisite amount to lend Rs.8,00,000/ in the year 2013.
14C.C.No.50412/2015
20. Further argued that, the writings found on the cheque is not writings of the accused, therefore it has been got filled up by the complainant and his mother. Accordingly, the expert report clearly discloses that, age of the writings is different than the signature found on the cheque, accordingly, the Ex.P.1 is a manipulated document, therefore, the accused has probabalised the defense that, it was issued to mother of the complainant with his signature only, further, the complainant has not charged any interest over Rs.8,00,000/ huge amount, as such no prudent man would lend huge amount without interest. Accordingly, the claimed debt is highly doubtful in nature. On these grounds, the accused claims to have rebuted the presumption drawn in favour of the complainant.
21. On the other hand, the counsel for the complainant vehemently argued that, the accused admitted cheque and signature on the cheque belongs to the accused, further, the accused has lodged the police is different transaction. Further, the cheque was returned not for "Funds Insufficient", but it was returned for "payment stopped by the drawer", therefore, the accused ought to 15 C.C.No.50412/2015 have produce her statement of account to prove that, she had requisite amount in her account. Further, there is no reference about issuance of Ex.P.1 cheque to mother of the complainant in Ex.D.1 to D.7, that apart, the accused claimed that, her cheque has been lost, but, which is contrary to her defense taken in this case and even there I no reference about custody of the cheque in question with a mother of the complainant in any of the complaint Ex.D.1 to D.6 as such the defense has not been proved by the accused, accordingly, the counsel for the complainant prays to convict the accused by relying upon decisions of Hon'ble Apex Court T.P.Murugan V/s Bojan Posa nandi.
22. So, considering the rival contentions with the arguments of both the sides, I have meticulously examined the materials on record, firstly, the accused challenged the financial capacity of the complainant, so, as rightly relied upon the decision of Hon'ble Apex Court ie., Basavalingappa v/s Mudibasavalingappa, once the accused challenges the financial capacity, the complainant has to prove the financial capacity. Therefore, the burden is on the complainant, to prove the same, though the complainant initially not produced any document, but 16 C.C.No.50412/2015 subsequently, he produced Ex.P.9 to P.11 and stated he arranged some amount by pledging golden ornaments and by receiving some amount from his friend.
23. To substantiate it, the amount arranged through pleading of golden ornaments, the accused relied upon Ex.P.10 and P.11, in Ex.P.9 it can be seen that, on 23.07.2012, sum of Rs.3,33,000/ was received by the complainant by pledging golden ornaments. Likewise, as per Ex.P.10 on 24.07.2012 received Rs.4,99,000/ from State Bank of Travencore, Indiranagar, both these gold loans were closed on 22.01.2013, so, which clearly strengthens the case of the complainant that, much prior to the date of advancement of loan ie., 10.04.2013, the complainant has pledged his golden ornaments worth Rs.3,33,000/ respectively from the State Bank of Travencore as per Ex.P.9 and P.10, which clearly corroborates the oral evidence of the complainant that, he had received the amount form State Bank of Travencore by pleading golden ornaments, which clearly establishes as on the date of advancement of loan ie., on 10.04.2013, the complainant had requisite amount to advance the loan of Rs.8,00,000/, though the accused cross examined 17 C.C.No.50412/2015 the P.W.1 on this Ex.P.9 and P.10, but nothing has elicited to disbelieve the documents that, the complainant never pledged the golden ornaments and received an amount more than Rs.8,00,000/ from the State Bank of Travencore, even the accused himself suggested that, as per Ex.P.9 and P.10, much after the advancement of loan ie., on 22.07.2013 the complainant was able to clear the gold loans by paying the amount of more than Rs.8,00,000/, which clearly establishes, though the complainant has not produced the document to prove the source of income, as per Ex.P.9 and P.10, he had requisite amount received through the bank by pledging golden ornaments belongs to him and his mother, which clearly establishes the financial capacity to advance the loan, therefore, the decision relied by the accused ie., Basavalingappa V/s Mudibasavalingappa, K.Subramani Naidu V/s K.Damodar Naidu are not helpful to the defense of the accused, because as per Ex.P.9 and P.10, the complainant has proved that, as on the date of advancement of loan, the complainant had requisite amount with him to advance which was received from pledging the golden ornaments, it is not the case of the accused that, apart from this gold loan, the complainant 18 C.C.No.50412/2015 had other loans or the complainant himself is in debt to others. So, in absence of that, as per Ex.P.9 and P.10, the complainant proved his financial capacity to advance the loan in the year 2013. accordingly, the above referred decisions are not helpful to the case of the accused, as in both the decisions referred supra, the complainant was himself in debt to others at the relevant point of advancing the loan. Therefore, the facts and circumstances of above referred cases and case in hand is entirely different. Hence, in my humble view both the decisions are not helpful to the case of the accused.
24. Further, the accused counsel vehemently argued that, no prudent man would lend huge amount of Rs.8,00,000/ without charging an interest, which is one of the doubtful circumstances of existence of loan transaction, therefore, which probabalise defense of the accused. But, said submission of the accused cannot be sustainable, because admittedly, the accused was tuition teacher of complainant, the P.W.1 has categorically stated as the accused was his teacher and long acquaintance with her, he advanced the amount without any interest, therefore, the considering the teacher and student 19 C.C.No.50412/2015 relationship, though no prudent man would not lend the amount without for an interest, but the relationship between the complainant and accused is teacher student relationship, therefore, no charging of interest to a teacher by a exstudent does not a valid ground to doubt the transaction. Accordingly, the said submission of the accused cannot be acceptable.
25. Besides that, the accused by relying upon the expert opinion which is on record vehemently contended that, the aged of the signature and the writings of the are different. Therefore, the signature is much prior to the writings on the cheque, accordingly, expert opinion strengthens the defense of the accused that, the complainant and his mother got filledup the contents of the cheque and manipulated is concerned, the P.W.1 has specifically denied the suggestion of the accused that, the complainant has filledup the contents of Ex.P.1 cheque and also denied the writings on the cheque is not of the accused. However, on careful perusal of the expert opinion on record, which clearly though establishes the fact that, the writings at the signature found on the cheque were not put at the same time, but, the age of the 20 C.C.No.50412/2015 writings were different. However, the expert did not find that, the hand writings found on Ex.P.1(a) and writings are not different person.
26. However, it is not the case of the accused that, the signature found on the cheque is not belongs to her only contention is the cheque has been got up by the complainant which was in custody of his mother. But, the accused first of all must prove the custody of the cheque with the complainant and transaction held in between her and the mother of the complainant in the year 2011, for that, the accused relied upon Ex.D.1 to D9, the complaint lodged by to commissioner of police, IGP, Civil Rights Enforcement, Karnataka State Commission for SC/ST, Home Minister and endorsement issued by the accused given before State commissioner for SC/ST and its endorsement, based on this, the accused contends that, she has filed a complaint against the mother of the complainant much prior to presentation of Ex.P.1 cheque ie., 13.08.2013 based on this, the learned counsel for the accused argued that, the accused taken legal action against the mother of the complainant, much earlier to the presentation of complainant to over come that, 21 C.C.No.50412/2015 criminal complainant's the mother of the complainant has misused the cheque issued for security by presenting it, through her son for Rs.8,00,000/ for illegal gain. On this specific submission, on careful perusal of Ex.D.1 to D6, the complaint lodged against the mother of the complainant one Nirmala about financial transaction. However, the custody of the cheque in question not at all been specified or referred in any one of the complainants. Therefore, all these Ex.D.1 to D6 documents does not discloses the custody of the cheque in question with Nirmala, however, the accused for the first time, on 12.12.2013 she has given statement wherein she made a reference of Ex.P.1, the State SC/SC commission and Biyappanahalli police have issued endorsement, as the dispute between them is civil in nature, but, it is significant to note that, the Ex.D.7 to D9 documents which are issued subsequent to filling of the case. The present case has been filed on 17.10.2013 wherein Ex.D.7 dated 12.12.2013, Ex.D.8 dated 04.08.2013, Ex.D.9 dated 09.01.2014, which are the documents issued by the concerned authority subsequent to filing of this complaint and Ex.D.7 is the statement of the accused subsequent to filing of this complaint. Therefore, these documents are 22 C.C.No.50412/2015 not helpful to the defense of the accused to prove that, the transaction between the accused and the mother of the complainant, further, the complainant has categorically suggested, whatever the transaction held in between him and the accused is different than the transaction claimed by the accused in Ex.D.1 to D.6. So, when the complainant has specifically contends that, the transaction between him and the accused and transaction alleged by the accused are entirely different. So, the burden is on the accused to prove that, the custody of the cheque with the mother of the complainant prior to presentation of cheque in question of Ex.P.1. But, the accused though produced Ex.D.1 to D9, it does not reflects the custody of the cheque with the complainant prior to presentation of the cheque. Therefore, the accused failed to produce the materials about custody of the cheque prior to the presentation of the cheque with the complainant's mother.
27. Besides that, it is significant to consider that, the accused specifically contended that, there was differences aroses between her and the mother of the complainant with regard to interest, accordingly, she lodged complaint 23 C.C.No.50412/2015 to the police and suggested to the P.W.1 that, she has issued stop payment instruction to her banker. However, it is not in dispute that, Ex.P.1 cheque returned for "payment stopped by the drawer" however, the a;has not produced her stop payment requisition to show that, for what reason, she has issued instruction to her banker for stop payment. But the a is silent about the reason for requesting her banker to stop payment, which is crucial material to consider before consider her alleged manipulation of cheque because as ruled by Hon'ble Apex Court ie., M/s MMTC Ltd., and another V/S Medchil Chemicals and Pharma Pvt. Ltd., held that, "even though the cheque dishonored by reason of stop payment instruction an offence under section 138 could still be made out. It is held that, the presumption U/S 139 is attracted in such a case also the authority shows that, even in the cheque is dishonored by reason of stop payment instruction by virtue Sec.139 the court as to presume that, the cheque was received by the holder for the discharge, 24 C.C.No.50412/2015 in whole or in part, of any debt or liability. Offcourse this is a rebuttable presumption. The accused can thus show that the stop payment instruction were not issued because of insufficiency or paucity of funds if the accused shows that in his account there was sufficient funds to clear the amount of cheque at the time of presentation the cheque for encashment at the drawer bank and that stop payment notice had been issued because of other valid causes including that there was no existing that or liability had been issued because of other valid cause including that there was no existing debt or liability at the time of presentation of cheque for encashment, then an o/p/u/s 138 would not be made out".
28. So, as per the above decision, firstly, the accused must prove the sufficient balance in her account and then she must prove the cheque was not bounced because of 25 C.C.No.50412/2015 the paucity of funds, but some other reasons. But, considering the above materials on record, significantly the cheque was dishonored for "stop payment by the drawer" so, the accused has not produced her statement of account to show that, there was sufficient balance in her account. Therefore, the very defense of the accused, without proving the sufficient balance in her account about manipulation of her signed blank cheque cannot be acceptable.
29. That apart, even her defense is taken into consideration, as true, admittedly Ex.P.1(a) signature found on the cheque is of the accused. According to the accused, she has issued that cheque, in favour of the mother of the complainant, but failed to establish, the issuance of Ex.P.1 cheque to the mother of the complainant in the year 2011, when she failed to prove the custody of the cheque with a complainant's mother much prior to the presentation of cheque in question by the complainant, her defense about manipulation cannot be acceptable, because she admits that, the signature found on the cheque pertains to her and she voluntarily issued the cheque, but it is not her case that, the cheque 26 C.C.No.50412/2015 in question has been forcibly obtained either by the complainant mother or complainant. So, once it is issued voluntarily, even it is signed blank cheque, the complainant got every right to fill and present the cheque. At this stage, it is worth to note, a decision of Hon'ble Apex Court in Bir Singh v/s Mukesh Kumar has held that;
" a meaningful reading of the provisions of the N.I.Act including, in particular, section 20, 87 and 139, makes it amply clear that a person who has signs a Cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that, the Cheque had been issued for payment of a debt or in discharge of liability. It is immeterial that, the Cheque may have been filled in by any person other than the drawwer, if the Cheque is duly signed by the drawer. If the Cheque is otherwise valid, the penal provision of section 138 would be attracted.27
C.C.No.50412/2015 If signed black Cheque is voluntary presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the Cheque,. The onus would still be on the accused to prove that the Cheque was not in discharge of a debt or liability by adducing evidence"
30. So, as per above dictum as contended by the accused she voluntarily issued signed blank cheque to the complainant's mother, but failed to prove the custody of the cheque with a mother of the complainant much prior to 2013. Therefore, it has to be accepted that, the accused voluntarily issued Ex.P.1 cheque in favour of the complainant, moreover, the expert opinion it clearly shows that, though there was an ink difference and writings and signature have been returned in a different point of time, but it is not that, the hand writings are different. Moreover, as held supra, the accused does not dispute her signature, therefore, it has to be accepted that, the accused has issued voluntarily the cheque in 28 C.C.No.50412/2015 question in favour of the complainant cannot be doubted unless and until the accused proves the custody of Ex.P.1 cheque with the complainant's mother since 2011, therefore, the alleged manipulation of Ex.P.1 cheque is not acceptable.
31. Considering the entire materials on record, the accused taken multiple defences to rebut the presumption ie., financial incapacity, transaction between her and the mother of the complainant, towards security of the said transaction Ex.P.1 cheque issued to mother of the complainant, same has been misused by the complainant and there is no financial transaction between complainant and accused, but, the a admits her signature Ex.P.1(a), but claimed that, it was issued to the mother of the complainant, but failed to establish the custody of he cheque Ex.P.1 with the complainant much prior to presentation of cheque in question ie., 2013, in absence of that, merely because Ex.D.1 to D7 alleging against the mother of the complainant about harassment for interest with does not ipso facto ground to disbelieve the present transaction, as there is no reference about custody of Ex.P.1 cheque by the complainant's mother much prior to 29 C.C.No.50412/2015 2013, in absence of that, as suggested by the complainant that, the present transaction referred in Ex.D.1 to D6 are entirely different cannot be ruled out,in absence of proof with regard to issuance of security Ex.P.1 cheque for mother of the complainant.
32. That apart, the accused contends financial incapacity of the complainant, but, the complainant produced gold loan statement of account which clearly establishes, the complainant had received more than Rs.9,00,000/ by mortgaging or pledging his golden ornaments and that has been repaid much prior to the advancement of the loan, which clearly establishes that, the complainant had requisite amount to lend the accused, as such, as held supra, the accused does not dispute her signature found on Ex.P.1(a), so once the cheque and signature admitted by the accused, it has to be presumed that, the accused had issued the cheque in question towards discharge of legally enforceable debt and for consideration. Therefore, as held supra the onus is on the accused to rebut the presumption, so, the accused cross examined the P.W.1, but nothing has placed on record to substantiate her defense that, the claimed 30 C.C.No.50412/2015 debt did not exist and Ex.P.1 cheque issued in favour of complainant mother, but not towards discharge of legally enforceable debt claimed in this case, in absence of proof, the custody of the cheque issued for security in favour of the complainant's mother and also the sufficient balance in the account of the accused as on the date of presentation of cheque, the defense of the accused is not credit worthy to believe that, the present transaction did not exist, accordingly same is not acceptable. Hence, as held supra to rebut the presumption, the accused must produce probable defense that, the claimed debt did note exist and cheque issued not for legally enforceable debt. But, nothing has brought on record to dislodge to presumption drawn in favour of the complainant. Accordingly, the complainant has proved the ingredients of section 138, compliance of section 138A to C of NI.Act and accused failed to pay the cheque amount within 15 days from the date of receipt of legal notice, therefore, the complainant has proved the guilt of the accused U/s 138 of NI.Act. Accordingly, accused is found guilty for the offence punishable u/Sc. 138 of N.I. Act.
31C.C.No.50412/2015
33. So, far as sentence and compensation is concern, it is well settled law an o/p/u/s.138 of N.I. Act is primarily compensatory in nature, Punitive is secondary. So, considering above settled principle of law, with the facts and circumstances of the case it clearly reflects that, the accused was his tuition teacher, he advanced the amount of Rs.8,00,000/ for the purpose of construction of house, but not far an interest, as such it is nothing but an interest free loan, therefore considering the nature of transaction and duration of pedency, I am of the opinion that, if the accused is sentenced to pay a fine of Rs.9,05,000/ that would meets the ends of justice. As such, the accused hereby sentenced to pay fine of Rs.9,05,000/ out of which the complainant is entitle for compensation amount of Rs.9,00,000/ as per Sec.357(1) of Cr.P.C. remaining amount of Rs.5,000/ is to be appropriated to the state, in case of default the accused shall under go simple imprisonment for a period of 6 months. Accordingly I answered the above point in "Affirmative".
34. Point No.2: In view of above finding to Point No.1, I proceed to pass following;
32C.C.No.50412/2015 ORDER Acting under section 255(2) of Criminal Procedure Code, the accused is convicted of the offence punishable U/s 138 of Negotiable Instrument Act.
The accused is sentenced to pay a fine of Rs.9,05,000/ (Rupees Nine lakh five thousand only) in default, the accused shall undergo simple imprisonment for a period of six months. Out of the fine amount received, Rs.5,000/ is to be appropriated to the State and by way of compensation as per the provision u/Sec.357(1) of Cr.P.C. the complainant is entitled for Rs.9,00,000 /.
The bail bonds and surety bond of the accused shall stand cancelled.
Office is directed to furnish a free copy of the judgment to the accused.
(Dictated to the Stenographer transcribed and typed by her, corrected, signed and then pronounced by me in the open court, on this the 23rd day of February, 2022) (M.Vijay), XXXIII ACMM, BENGALURU.
33C.C.No.50412/2015 ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : Sri. R.Rakesh Babu
2. Documents marked on behalf of complainant:
Ex.P.1 : Cheque
Ex.P.1(a) : Signature of the accused
Ex.P.2 : Counter file
Ex.P.3 : Bank endorsement
Ex.P.4 : O/c. of Legal notice
Ex.P.5 & 6 : Postal receipts
Ex.P.7 & 8 : 2 postal registered cover
Ex.P.7(a) & 8(a) : Unserved postal cover opened in the
open court and notice therein marked
Ex.P.9 & 10 : Bank statements
Ex.P.11 : Statement of account
3. Witnesses examined on behalf of Accused:
D.W.1 : Smt. Malar Kudi
4. Documents marked on behalf of Accused:
Ex.D.1 to 5 : Copies of the complaint
Ex.D.6 : Endorsement issued by police
Ex.D.7 : Copy of the complaint
Ex.D.8 : Letter dtd:14.12.2013 written to
SC/ST commission
Ex.D.9 : Endorsement issued by the police
Ex.D.10 : Notarized copy of the Aadhar card
(the said document is marked on
34
C.C.No.50412/2015
perusal of original Aadhar card and
the original Aadhar card has been
returned to the witness with
direction to bring the said original
document to the court till her cross
examination and as and when
directed to produce to the court)
(M.Vijay),
XXXIII ACMM, BENGALURU.
35
C.C.No.50412/2015
(Order pronounced in the open court vide separate Judgment) ORDER Acting under section 255(2) of Criminal Procedure Code, the accused is convicted of the offence punishable U/s 138 of Negotiable Instrument Act.
The accused is sentenced to pay a fine of Rs.53,05,000/ (Rupees Fifty three lakh five thousand only) in default, the accused shall undergo simple imprisonment for a period of six months. Out of the fine amount received, Rs.5,000/ is to be appropriated to the State and by way of compensation as per the provision u/Sec.357(1) of Cr.P.C. the complainant is entitled for Rs.53,00,000 /.
36C.C.No.50412/2015 The bail bonds and surety bond of the accused shall stand canceled.
Office is directed to furnish a free copy of the judgment to the accused.
XXXIII ACMM, BENGALURU.