Bangalore District Court
Sri.B.M.Ramesh vs Smt.B.Eshwari on 9 January, 2017
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 9th day of January 2017
Present: Smt. Saraswathi.K.N, B.A.L., LL.M.,
XVI Addl.C.M.M., Bengaluru City.
JUDGEMENT U/S 355 OF Cr.P.C.,
Case No. : C.C. No.658/2015
Complainant : Sri.B.M.Ramesh,
S/o.B.P.Maruthi,
Aged about 44 years,
R/at No.104,
Bheereshwara Nagar,
Opp.Rajeshwari Bar,
Chuncha Ghatta Main Road,
Bengaluru-62.
(Rep. by Sri.R.Venkatesha.,
Adv.,)
- Vs -
Accused : Smt.B.Eshwari,
W/o. Sri.B.M.Manjunath,
Aged about 46 years,
R/at.No.4, 8th Cross,
Shivashakthi Nagar,
Bengaluru-62.
(Rep. by Sri.Nagaraju.K.,
Adv.,)
2 C.C. No.658/2015 J
Case instituted : 2.12.2014
Offence complained : U/s 138 of N.I. Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is Convicted
Date of order : 9.1.2017
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, the Accused and he are known to each other for more than 8 years. Somewhere during 2006, the Accused had taken one of his houses on mortgage and resided in the said house for about 3 years. Apart from that, the husband of the Accused is also running a shop under the name and style of Sri.Durga Stores in the same locality. As such, the Accused approached him during October 2013 for a hand loan of Rs.2,50,000/= to open a Cyber Center for her son by name Sri.Chirag. Considering her bonafide requirement and friendship, he lent the amount of Rs.2,50,000/= to her during October 2013, out of his 3 C.C. No.658/2015 J savings amount. While taking the hand loan of Rs.2,50,000/=, the Accused had assured that, she would repay the said loan amount of Rs.2,50,000/= within 6 months. But the Accused went on taking time to repay the said loan amount on one ground or the other and finally on his persistent demand, she sought for another 5 months time and got issued a post dated cheque dated 20.10.2014 during May 2014 for a sum of Rs.2,50,000/= drawn on Central Bank of India, Jaraganahalli Branch, Bengaluru, towards the repayment of the said loan amount of Rs.2,50,000/=. While issuing the said cheque, the Accused also assured him that, the said cheque would be honoured on it's presentation on the due date. Accordingly he waited till the due date of the said cheque and thereafter he presented the said cheque, according to the instructions of the Accused through his Banker. To his surprise, the said cheque came to be returned dishonoured with an endorsement "Funds Insufficient"
on 27.10.2014. Immediately, he intimated the said fact to the Accused orally many times and thereafter got issued the legal notice to her on 30.10.2014 to her residential address and also to her shop address by RPAD. The notice sent by RPAD to the shop address is duly served 4 C.C. No.658/2015 J on her on 7.11.2014, but the notice sent to her residential address returned un-served with a postal shara. But even after the service of the statuary notice, the Accused has neither replied to the notice nor repaid the cheque amount.
3. The Complainant submits that, the dishonour of the cheque by the Accused has been malafide, intentional and deliberate. Feeling aggrieved by the conduct of the Accused, he has filed the present complaint praying that the Accused be summoned, tried and punished in accordance with Sec.138 of the Negotiable Instruments Act.
4. The Pre-summoning evidence has been led by the Complainant on 8.1.2015. Prima-facie case has been made out against the Accused and she has been summoned vide order of the same date.
5. The Accused has appeared before the Court on 22.5.2015, she has been enlarged on bail. The substance of the accusation has been read over to her on 23.6.2015, to which she has pleaded not guilty and has claimed the trial.5 C.C. No.658/2015 J
6. In his post-summoning evidence, the Complainant has examined himself as PW1 and has filed his affidavit, wherein he has reiterated the averments made in the complaint.
P.W.1 has also relied upon the following documentary evidence:-
Ex.P1 is the cheque, in which, the signature is identified by P.W.1 as that of the Accused as per Ex.P1(a), the Bank memo as per Ex.P2, the office copy of the legal notice as per Ex.P3, the Postal receipts as per Ex.P4 & 5, the Postal Acknowledgment as per Ex.P6, the Returned Postal Cover as per Ex.P7, the True Copy of the Statement before the Police as per Ex.P8, the complaint as per Ex.P9 and the signature on the complaint as per Ex.P9(a), the Reply Notice as per Ex.P10 and the true copy of the Complaint lodged before the Subramanyapura Police as per Ex.P11.
7. In support of the case of the Complainant, a witness by name K.R.Kumar, is examined as PW2, who has corroborated the evidence of the Complainant and he has sworn that, the hand loan transaction of Rs.2,50,000/= took place in October 2013.6 C.C. No.658/2015 J
when he was in the electric shop of the Complainant in his presence and that the Accused availed the said loan for the purpose of opening a Cyber Center for her son assuring to repay the same within 6 months. He has further sworn that, the Accused has issued a post dated cheque to the Complainant in his presence towards the repayment of the loan amount in May 2014 and that the Complainant presented the said cheque for encashment through his Banker in his presence.
8. It is pertinent to note that, though PW2 has been extensively cross-examined by the learned Defence counsel, nothing has been elicited from his mouth so as to discredit or disbelieve his evidence.
9. The statement of the Accused under Sec.313 of Cr.P.C., has been recorded on 19.5.2016.
10. In her rebuttal evidence, the Accused has examined herself as DW1 and during her evidence, she has filed affidavit in which, she has sworn that, she does not know the Complainant and that she has not seen him prior to the present case and that the entire alleged transaction of her hand loan of Rs.2,50,000/= from the 7 C.C. No.658/2015 J Complainant is false. She has further sworn that, her son is working in Medical Stores and that he has not opened a Cyber Center at Bengaluru and that they are earning handful and as such, there was no necessity for them to avail any loan from the Complainant.
11. With regard to her cheques in the possession of the Complainant, it is sworn by the Accused that, the Complainant had taken two cheques for the purpose of security and he was running a chit business and that though she has paid the entire chit amount, inspite of it, the Complainant has not returned her two cheques after the completion of the chit transaction and that by misusing one of the said two cheques, he has filed the present false case against her. According to her, the Complainant has filled up the blank cheque for a sum of Rs.2,50,000/= and he is still in possession of her another blank cheque belonging to the Central Bank of India, Yelachenahalli Branch, Bengaluru and thereby she has taken up the defence that, though she has not obtained any hand loan from the Complainant, he has filed this false case against her for illegal gain.
8 C.C. No.658/2015 J12. During her cross-examination, it is elicited from DW1 that, about 7 years back, she was running a provision stores in the name of Durga Stores on Chuncha Ghatta Main Road, the address of which is Chuncha Ghatta, Ganapathi Pura, Bengaluru-62 and while she was running the said provision business, even her husband was looking after the shop. With regard to the suggestion that the Complainant has a shop by name R.V.Electricals, just opposite to her shop, she has pleaded ignorance, but she has denied that she had taken a house on mortgage in the year 2006 belonging to the Complainant situated in the same building of his shop and she has further denied the document titled as the Lease agreement dated 8.6.2006, as per Ex.N1, in which the name of the Complainant is shown as the owner of the said premises. However D.W.1 has admitted that, the cheque at Ex.P1 and the signature at Ex.P1(a) belongs to her, but she has taken up the defence that, she has not issued the said cheque to the Complainant, but she does not know, as to when and to whom she has given the said cheque.
9 C.C. No.658/2015 J13. According to DW1, her husband had a chit transaction of Rs.1,00,000/= with the Complainant. But she has not enquired from her husband about the year in which he had the said chit transaction with the Complainant. With regard to the contents of the Reply Notice, DW1 has pleaded ignorance by claiming that, it is her husband, who has given instructions to her advocate with regard to the contents of the legal notice. However according to her, the total monthly income of herself and her son is about Rs.25,000/=.
14. In the light of the defence taken by the Accused about her alleged chit transaction with the Complainant, when she has been questioned, as to, when the Complainant has taken her two cheques, as well as the details of the said cheque numbers, she has pleaded ignorance, but according to her, she had given the said two cheques to the Complainant towards the security of the chit amount of Rs.1,00,000/=. She has denied the suggestion that, she has stated in her affidavit that, she has paid the entire chit amount to the Complainant. it is elicited from her hat, she has not alleged any complaint and she has not taken any legal action against him alleging that, he has misused her cheques. However it is 10 C.C. No.658/2015 J elicited from the mouth of DW1 that, there was no ill-will between the Complainant and herself. DW1 has given a material admission that, she has opened a shop in the name of her son in Chirag Cyber Center and she has further admitted that, there is one Rajarajeshwari Bar and Restaurant adjacent to her Durga Stores and she has further admitted the suggestion that, she knows the witness/PW2 and that she has seen him since 3 to 4 years and that he does driving work. With regard to her claim that, her cheques were lost as suggested by her counsel while cross-examining the Complainant, D.W.1 has stated that her cheques were never lost and that she has not stated in the cross-examination of the Complainant that her cheques were lost. Likewise it is elicited from her that, her son, herself and her husband are residing in their house cordially at Sharadanagar and that she was residing in the said area from 2006 to 2011. However she has denied that, she was residing in the house of the Complainant on mortgage from 2006 to 09.
15. She has also pleaded ignorance with regard to the complaint lodged by her husband against the Complainant before the Subramanyapura Police and also the endorsement issued to her husband by the concerned 11 C.C. No.658/2015 J police. However she has admitted that, the signature on statement at Ex.P8 is that of her husband. But thereafter, she has denied the entire case of the Complainant, but finally she has claimed that, it is her husband, who has given her cheque in favour of the Complainant and it is not given by her.
16. The learned counsel for the Complainant has prayed for the conviction of the Accused on the ground that, the Accused has admitted that, the cheque in question belongs to her and that the signature at Ex.P1(a) is her signature. However the Accused has taken total inconsistent defences, by virtue of which, the entire defence taken by the Accused has become improbable and unbelievable. It is further argued that, the Accused has totally ignored the defence taken by her in her reply notice at Ex.P10, which is the defence first in point of time, while she has come up with total inconsistent defences while cross-examining the Complainant and during her evidence before the Court. The Accused has admitted that her husband has given a statement by signing as per Ex.P8, in which, the transaction is admitted, but she has denied that only with a view to 12 C.C. No.658/2015 J escape from her liability, she has deposed falsely before the Court.
17. It is further argued that, the case of the Complainant is also corroborated by the evidence of an instant witness PW2. Likewise, the Accused has admitted her acquaintance with the witness/PW2, during her statement under Sec.313 of Cr.P.C., and that, there is no proof placed by the Accused to show that, her cheque was lost. The entire case of the Complainant is admitted during the cross-examination of the Accused. Hence prayed for the conviction of the Accused.
18. The learned counsel for the Accused has prayed for the acquittal of the Accused on the ground that, firstly the Complainant has failed to prove his financial capacity before the Court and that the Complainant has failed to produce his IT returns and the provision of Sec.269(SS) of the Income Tax applies to him. It is further argued that, there is contradiction about the date of the issuance of the cheque as stated in the legal notice and in the cross-examination of the Complainant. It is also argued that the document at Ex.N1 i.e., a lease agreement is a created document by the Complainant and moreover the 13 C.C. No.658/2015 J Complainant has failed to prove that, he has income from his Electrical work etc., It is further argued that the Complainant has failed to prove his case beyond reasonable doubt and that the Accused has probabalised her defence. Accordingly he has prayed for the acquittal of the Accused.
19. I have considered the submissions and perused the record carefully.
20. Sec.138 of the Negotiable Instruments Act has been enacted to lend credibility to the financial transactions.
The main ingredients of the offence under Section 138 Negotiable Instruments Act are:-
(i) Drawing up of a cheque by the Accused towards the payment of the amount of money, for the discharge, in whole or in part, of any debt or any other liability;
(ii) Return of the cheque by the bank as unpaid;
(iii) The drawer of the cheque fails to make the payment of the said amount of money within 15 days of the receipt of the notice under the proviso (b) to Section
138. 14 C.C. No.658/2015 J
21. The Explanation appended to the Section provides that, the "debt or other liability" for the purpose of this Section means a legally enforceable debt or other liability.
22. Apart from this, Sec. 139 of the Negotiable Instruments Act lays down a presumption in favour of the holder of cheque in the following terms:-
"It shall be presumed, unless the contrary is proved, that:-
The holder of a cheque received the cheque, of the nature referred to in Sec. 138, for the discharge, in whole or in part, of any debt or other liability".
23. Also, Sec. 118 of the Negotiable Instruments Act states, "Until the contrary is proved, the following presumptions shall be made:-
(a) that every Negotiable Instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;"15 C.C. No.658/2015 J
24. Thus, the Act clearly lays down the presumptions in favour of the Complainant with regard to the issuance of the cheque by the Accused, towards the discharge of his liability in favour of the Complainant.
25. Under the scheme of the Act, the onus is upon the Accused to rebut the presumptions in favour of the Complainant by raising a probable defence.
26. Such being the legal position, it would be pertinent to refer to the defences raised by the Accused to rebut the presumptions in favour of the Complainant in this case.
27. Before going to discuss about the evidence on record it is necessary to note that, the defence taken by the Accused first in point of time is set out in Ex.P10, wherein the defence of the Accused is one of the entire denial of the case of the Complainant. However at the end, the Accused has taken up a defence that, the Complainant has taken the disputed cheque as security and that she has repaid the hand loan to the Complainant and after the repayment of the loan, though she demanded and requested the Complainant to return 16 C.C. No.658/2015 J the disputed cheque, she was told by him that the said cheque was misplaced and that the same will be returned as soon as it is traced and therefore believing the same she kept quite, but only after the receipt of the legal notice, she came to know that the Complainant has misused the cheque in question.
28. It is pertinent to note that, as per the defence taken by the Accused in the Reply Notice, wherein she has admitted having availed the loan from the Complainant, but has taken a specific stand that, the cheque in question was collected by the Complainant from her as a security for the said loan and though she has repaid the loan, the Complainant did not return the cheque in question to her, but by misusing the same the present proceedings has been initiated against her by the Complainant illegally.
29. In the background of this defence taken by the Accused in the Reply Notice, it is pertinent to note that, in the cross-examination of the Complainant, the Accused has firstly taken up the defence that, she does not know the Complainant at all and she has also denied that, she was not residing in the house of the 17 C.C. No.658/2015 J Complainant as claimed by him. Likewise it is suggested to PW1 that, there has been no financial transaction between himself and the Accused from October 2013 to 30th January 2014 as claimed by him and that though he has not lent any amount to the Accused, by misusing the her lost cheque, he has filed this false case against her. With this suggestion made to PW1, the Accused has come up with a totally inconsistent defence that, she had lost her cheque, which has been misused by the Complainant. Even if it is assumed for a moment that, the cheque of the Accused was lost, then the next question that arises is, what is the course adopted by the Accused so as to recover her cheque. In this regard the Accused has remained silent, both during the cross- examination of the Complainant as well as in her evidence before the court. Therefore the claim of the Accused that her cheque was lost has not been proved by her by reliable and cogent evidence and as a result, the same cannot be believed by this court.
30. Interestingly, the Accused has come up with one more defence that, as on the date of her loss of the cheque in question, her one more cheque belonging to the Jaraganahalli Branch of Central Bank of India was 18 C.C. No.658/2015 J also lost. This defence is set out by the Accused for the first time only during the cross-examination of the Complainant, though nothing has been whispered about the same by her in the Reply Notice at Ex.P10.
31. It is pertinent to note that, during the cross- examination of the Complainant, one more defence raised by the Accused is that, the Complainant knows the Police Staff of Subramanyapura Police and that with their help, the Complainant has got summoned her husband and has got the obtained his signatures on the blank paper for a sum of Rs.2,50,000/=. Now coming to the defence of the Accused, as stated by her in her chief-evidence, initially she has denied the entire case of the Complainant and for the first time she has come up with a new defence theory that the Complainant does chit business and that he had collected her two cheques for the purpose of security and though she has paid the entire chit amount, after the completion of the chit transaction, the Complainant has misused the said cheques and has filed this false case against her and that he still is in possession of her another blank cheque drawn on the Central Bank of India, Yelachenahalli Branch, Bengaluru. Interestingly during the cross-
19 C.C. No.658/2015 Jexamination of the Complainant, it is suggested to him that, he is in possession of one more cheque of the Accused belonging to the Central Bank of India of Jaraganahalli Branch, Bengaluru. This is also seriously contradictory to the defence set forth by the Accused. However during her cross-examination, the Accused has not been able to state, the date on which, the Complainant is alleged to have collected the aforesaid two cheques from her and likewise she could not say the said cheque numbers. Likewise, she has deposed that, her cheques were never lost and that, she has not stated in the cross-examination of the Complainant that, her cheques were lost.
32. These answers given by the Accused goes to show that, in her zeal of defending herself, the Accused has come up with total inconsistent defences, thereby making her entire defence improbable and unbelievable.
33. The next defence raised by the Accused is with regard to the financial capacity of the Complainant.
In view of the decision of the Hon'ble Apex Court in Rangappa Vs., Mohan, reported in AIR 2010 SC 1898, the defence of the Accused only on the technical 20 C.C. No.658/2015 J ground that, the financial capacity of the Complainant cannot be considered by the Court, as a sole ground to disbelieve the entire case of the Complainant. There could be no doubt that, there is presumption in favour of the Complainant. The observation of the Hon'ble Apex Court in Para No.26 in the judgment in the case of Rangapa Vs., Mohan, has set at rest the controversy in the case of the Krishna Janardhana Bhat, about the burden on the Complainant to establish all circumstances, including the financial capacity and the reversal of burden on the Accused under Sec.139 has been disagreed. No doubt in the decision of the Krishna Janardhana Bhat case, the finding of the Hon'ble Apex Court with regard to the financial capacity of the Complainant was based upon the facts of that case and that the same cannot be construed as a law applicable to all the cases uniformly. It is a settled position of law that, nowhere either in Sec.138 or in Sec.142 of the N.I.Act, which deals with taking cognizance, there is any indication that to take cognizance, the complaint must contain averments about the proof regarding the transaction or proof of the capacity of the lender. In this back ground, our Hon'ble High Court has clearly held in 21 C.C. No.658/2015 J the decision of K.Damodara Naidu Vs., K.Subramani, decided on 10.10.2013, that:
"If we were to hold that the Complainant must first establish his capacity to lend, then the presumption provided under Sec.139 of the N.I.Act will be rendered nugatory and its presence in the statute book will become meaningless."
34. Therefore the position of law which emerges from the decision of our Hon'ble High Court cited above is that, the presumption mandated by Sec.139 of the N.I.Act does indeed include the existence of a legally enforceable debt or liability. This is of course in the nature of a rebuttable presumption and it is open to the Accused to raise a defence, wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption, which favors the Complainant".
35. Therefore keeping in mind the aforesaid principles of law, even in the present case, no doubt the Complainant is entitled to the benefit of the presumption mandated by Sec.139 of the N.I.Act, which of course, is 22 C.C. No.658/2015 J kept open to the Accused to raise a defence to contest the existence of the legally enforceable debt or liability. In view of the same, as the Accused has raised the said defence, it is necessary to given a finding on this issue.
36. No doubt, in the present case, the Complainant has also been cross-examined extensively by the leaned Defence counsel with regard to his financial capacity, so as to have allegedly lent the loan to the Accused. However it is pertinent to note that, the evidence of the Complainant is corroborated by the evidence of the witness/PW2 and the Accused herself by suggesting to the Complainant that, he was carrying on a chit business has admitted his financial capacity, because it is not possible to run a chit transaction by a person, if he himself is not financially stable. Likewise the Accused as well as her husband have admitted their loan transaction with the Complainant as per the documentary evidence at Ex.P8, 10 & 11 and now they are estopped from denying the financial capacity of the Complainant. Therefore it is pertinent to note that, even though the Accused has questioned the financial capacity of the Complainant, the said defence is not taken by the Accused seriously and in view of the admission by the 23 C.C. No.658/2015 J Accused that, she had issued the cheque in favour of the Complainant towards the security of a loan and that she has discharged the hand loan to the Complainant, the defence of the Accused in respect of the financial capacity of the Complainant is improbable. Therefore now the Accused cannot contend that the Complainant did not have the financial capacity so as to have allegedly lent the loan to her.
37. Thus by appreciating the entire evidence on record, it clearly goes to show that, the Complainant has proved beyond reasonable doubt that, the cheque in question has been issued by the Accused in his favour towards the discharge of the legally enforceable debt and on the contrary, the Accused has miserably failed in her attempt to probabalise her defence.
38. Thus for the reasons discussed above, I proceed to pass the following:-
ORDER By exercising the power conferred u/s 265 of Cr.P.C., the Accused is hereby convicted for the offence punishable u/s 138 of the Negotiable Instruments Act.24 C.C. No.658/2015 J
She is sentenced to pay a fine of Rs.2,75,000/- (Rupees Two Lakhs Seventy Five Thousand only) within 30 days from today and in default of payment of fine, she shall undergo simple imprisonment for 6 (six) months.
Out of the fine amount so collected Rs.2,65,000/-(Rupees Two Lakhs Sixty Five Thousand Only) is ordered to be paid to the Complainant as Compensation and the balance of Rs.10,000/- (Rupees Ten Thousand only) is ordered to be adjusted towards cost to the State exchequer.
The bail bond and surety bond of the Accused stands cancelled.
Issue free copy of the Judgment to the Accused forthwith.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her, verified, corrected and then pronounced by me in the open Court on this the 9th day of January, 2017).
(SARASWATHI.K.N), XVI Addl.CMM., Bengaluru City.
ANNEXURE
1. List of witnesses examined on behalf of the Complainant:-
PW.1 : B.M.Ramesh;
PW.2 : K.R.Kumar.
25 C.C. No.658/2015 J
2. List of documents exhibited on behalf of the Complainant:-
Ex.P-1 : Original Cheque;
Ex.P-1(a) : Signature of the Accused;
Ex.P-2 : Bank memo;
Ex.P-3 : Copy of the Legal Notice;
Ex.P-4 & 5 : Postal Receipts;
Ex.P-6 : Postal Acknowledgment;
Ex.P-7 : Returned Postal Cover;
Ex.P-8 : True copy of the Statement before Police;
Ex.P-9 : Complaint;
Ex.P-9(a) : Signature on the complaint at Ex.P9;
Ex.P-10 : Reply Notice;
Ex.P-11 : True copy of the complaint lodged before
the Subramanyapura Police
(Through D.W.1)
3. List of witnesses examined on behalf of the Accused:-
DW-1 : Smt.Eshwari
4. List of documents exhibited on behalf of the Accused:-
Ex.N-1 : Lease Agreement;
Ex.N-2 : Acknowledgment.
(SARASWATHI.K.N),
XVI ACMM, Bengaluru City.
26 C.C. No.658/2015 J
9.1.2017
Judgment pronounced in the open court vide separate order.
ORDER By exercising the power conferred u/s 265 of Cr.P.C., the Accused is hereby convicted for the offence punishable u/s 138 of the Negotiable Instruments Act.
She is sentenced to pay a fine of Rs.2,75,000/- (Rupees Two Lakhs Seventy Five Thousand only) within 30 days from today and in default of payment of fine, she shall undergo simple imprisonment for 6 (six) months.
Out of the fine amount so collected Rs.2,65,000/-(Rupees Two Lakhs Sixty Five Thousand Only) is ordered to be paid to the Complainant as Compensation and the balance of Rs.10,000/-
(Rupees Ten Thousand only) is ordered to be adjusted towards cost to the State exchequer.
The bail bond and surety bond of the Accused stands cancelled.
27 C.C. No.658/2015 J Issue free copy of the
Judgment to the Accused
forthwith.
XVI A.C.M.M., Bengaluru.