Bangalore District Court
Sri. Srinivasa Gowda vs Smt. Lakshmamma on 1 December, 2018
1 C.C.NO.13638 OF 2017
IN THE COURT OF THE XII ADDL. CHIEF METROPOLITAN
MAGISTRATE, AT BENGALURU
Dated this the 1st Day of December 2018
Present: Sri. Rajkumar .S.Amminbhavi., B.Com., LLB (Spl)
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
C.C.No. 13638/2017
Complainant: Sri. Srinivasa Gowda
S/o. Late Mariyappa
Aged about 61 Years
R/at. No.364, Manjunatha
Temple Road, 2nd Main
SBM Colony
Banashankari I Stage
Benglauru-560 050.
(By Malleshaiah., Adv)
- Vs -
Accused: Smt. Lakshmamma
Aged about 40 Years
W/o. Chenna Renukaiah
R/at. No.5, Dhanvantri House
Huliyuramma Temple Road
Hosakerehalli
Bengaluru-560 085.
(By. Anil Kumar., Adv)
Offence complained of: U/s. 138 of the Negotiable
Instruments Act
Plea of the accused: Pleaded not guilty
Final Order: Accused is Convicted
Date of order: 01.12.2018.
2 C.C.NO.13638 OF 2017
******
JUDGMENT
This is a complaint under Sec.200 of Cr.PC against the accused for the offence punishable under Sec.138 of the Negotiable Instruments Act.
2. The facts of the complaint in brief are that, both the accused and the complainant are known to each other. On account of well acquainted with the complainant, the accused has approached the complainant and requested advancement the hand loan an amount of Rs.5,00,000/- during the 2nd week of September 2016 for her family legal necessities and accordingly, considering the request of the accused and believing the words of the accused and on the humanitarian ground, the complainant has advanced an amount of Rs.5,00,000/- on 20.09.2016 and on the same day to discharge of her legally enforceable debt, the accused had issued a postdated cheque bearing No.791900, dated: 20.02.2017 for a sum of Rs.5,00,000/- drawn on Corporation Bank, Girinagara Branch, Bengaluru-560 085 in favour of the complainant and assured that, the said cheque would be honoured on its presentation and accordingly, as per the assurance made by the accused, the complainant has presented the said cheque for encashment through his banker i.e., The Shamrao Vithal Co-Operative Bank Limited, 3 C.C.NO.13638 OF 2017 Hanumanthanagar Branch, Bengaluru, but it was dishonoured with an endorsement as "Funds Insufficient"
on 21.02.2017 and 23.02.2017 and thereafter, the complainant has informed the said fact to the accused, but the accused did not responded the same. Hence, the complainant had got issued the legal notice on 21.03.2017 by RPAD calling upon her to repay the said borrowed loan amount within 15 days from the date of receipt of this legal notice and it was returned an postal endorsement as "Door lock First intimation dropped on 22.03.2017 and 2 nd Intimation dropped on 23.03.2017, not claimed/returned to sender it amounts to deemed service of the legal notice. Despite of service of the legal notice, the accused neither paid the borrowed the loan amount nor replied the legal notice issued by the complainant. Hence, the complainant had constrained to file a complaint against the accused for the offence punishable under Section 138 of N.I. Act., which is well within time and based on the records available on record cognizance has been taken and registered it PCR.
3. After recording of the sworn statement of the complainant and complaint is registered in criminal case register and after issuance of summons to the accused, pursuant to the summons the accused had appeared before this Court through his counsel and enlarged on bail.
4 C.C.NO.13638 OF 2017The substance of accusation was recorded and read over to the accused in her vernacular. She pleaded not guilty. Hence, claims for trail.
4. In order to prove the case of the complainant, the complainant got himself examined as PW.1 & got 6 documents marked as Ex.P.1 to Ex.P.6 and PW-1 has been fully cross-examined and the statement of accused under Section 313 of Cr.P.C., was recorded and the accused has denied the incriminating statement against her and the accused herself examined as DW-1 and none of the documents marked in support of her defence and after completion of the defence evidence, the matter was posted for arguments.
5. Heard arguments.
6. The following points arise for my determination;
1. Whether the complainant proves that the accused had issued Cheque bearing No.791900, dated: 20.02.2017 for a sum of Rs.5,00,000/- drawn on Corporation Bank, Girinagara Branch, Bengaluru, for discharge of the amount and when the said cheque presented for encashment, it was dishonoured with an endorsement "Funds Insufficient" and after issuance of the legal notice she fails to repay the said amount and Thereby, the accused have committed offence 5 C.C.NO.13638 OF 2017 punishable U/s. 138 N.I.Act?
2. What order ?
7. My answer to the above points are;
Point No.1 : In the Affirmative
Point No.2 : As per final order for the
following;
REASONS
8. POINT NO.1: On perusal of the evidence of PW-1 he has reiterated as per the averments made in the complaint and he has got marked 6 documents namely, cheque which is marked as Ex.P1, the signature of the accused therein which is marked as Ex.P1(a), two bank endorsements which are marked as Ex.P2 and Ex.P3, the office of the legal notice which is marked as Ex.P4, postal receipt which is marked as Ex.P5, returned postal cover which is marked as Ex.P6, Copy of the legal notice which is kept in Ex.P6 which is marked as Ex.P6(a).
9. During the course of cross of PW-1 he has deposed that, he was doing vegetable business for the last 25 years at Chamarajpet, Bengaluru under the name and style as Krishnamurthy Stores. He deposed that, he know the accused for the last 10-15 years as husband of the accused was served in police Department and thereby through the 6 C.C.NO.13638 OF 2017 husband of the accused, he know the accused. He deposed that, he was advanced the loan in question on 20.09.2016 for the purpose of family necessities and financial problem of the accused. He deposed that, he was advanced the loan in question by way of cash out of the amount saved in his house and at that time of the advancement the loan in question to the accused none of the persons were present except themselves. He deposed that, he was not advanced the loan in question on the interest basis. He deposed that, he was not being a income tax assessee, but his wife being a income tax assessee and the advancement the loan in question does not reflected in his wife income tax returns. He deposed that, the accused has issued cheque in question on which date, he was advanced the loan in question to the accused. He deposed that, he was getting monthly income an amount of Rs.1,00,000/- to Rs.1,50,000/- every month from his business. He deposed that, he know one Rudresh who is none other than brother of the accused. He denied the suggestion that, there was financial transaction took place between himself and one Rudresh. He denied the suggestion that, since one Rudresh was made financial transaction with him and to that effect, said Rudresh had issued cheque in question to him. He denied the suggestion that, he was advanced the loan in question to one Rudresh and at that time, said Rudresh had issued 7 C.C.NO.13638 OF 2017 cheque in question for the security which is pertain to the bank account of the accused. He denied the suggestion that, he was not at all advanced the loan in question to the accused and the accused has not at all issued cheque in question for discharge the loan in question. He denied the suggestion that, he was not having financial capacity for advancement the loan in question to the accused.
10. During the course of defence, the accused herself examined as DW-1 by way of oral evidence, wherein, she has specifically stated that, she do not know the present complainant and her brother by name Rudresh had issued cheque in question to the complainant and the said fact she came to know, when she was appeared before this Court.
11. During the course of cross of DW-1 she had deposed that, her husband was died about 22 years back. She denied the suggestion that, house of the complainant which is situated adjacent to her house. She deposed that, she is serving in NCC Training Center at Cunning Ham Road, Bengaluru. She deposed that, she had having two children. She denied the suggestion that, after death of her husband in order to meet out her family expenses, she was borrowed the loan in question from the complainant. It is true that, Ex.P1 cheque belonging to her own bank account and the signature found on the Ex.P1(a) is her 8 C.C.NO.13638 OF 2017 own signature. She denied the suggestion that, she was borrowed the loan in question from the complainant and for discharge the loan in question, she was issued cheque in question and she has deposing falsely with an intention to escape from her liability.
12. On perusal of the averments made in the complaint and also documents produced by the complainant is that, it is an admitted fact that, even after issuance of the legal notice by the complainant to the accused prior to filing of the said complaint which was duly served and after receipt of the legal notice, the accused has not given reply notice. Therefore, prior to filing of the said complaint the complainant had complied all the necessary ingredients under Section 138 of N.I.Act. There is no dispute that, Ex.P1 cheque is belonging to her own bank account and the signature found on the Ex.P1(a) is her own signature.
13. It is case of the complainant is that, both the complainant and accused are known to each other and on account of well acquainted with the complainant, the accused has approached the complainant and requested for the advancement of loan amount of Rs.5,00,000/- and accordingly, the complainant has advanced the loan an amount of Rs.5,00,000/- and subsequently, for discharge the loan in question the accused has issued cheque in question and assured that, the said cheque would be 9 C.C.NO.13638 OF 2017 honoured on its presentation and after presentation of the said cheque, it was dishonoured and same has been informed to the accused, but the accused not responded the same and thereby, the complainant has got issued legal notice through his counsel and same has been duly served upon the accused and despite of service of the legal notice, the accused neither paid the borrowed loan amount nor replied the legal notice issued by the complainant. Hence, the complainant has filed the present complaint.
14. On the other hand, the accused has taken specific defence during the cross of PW-1 and during the course of defence evidence that, she was not at all borrowed the loan in question from the complainant and she was not all issued cheques in question to the complainant and further, she was issued cheque in question to her brother by name Rudresh and he was issued cheque in question to the complainant and the said fact she came to know when she was appeared before this Court and same is misused and filed false complaint with an intention to get wrong full gain, but to substantiate the same, she ought to have examine her brother. Therefore, non-examination her brother is very much fatal to the alleged defence taken by the accused during the course of cross of PW-1.
15. If really, she was not at all borrowed the loan in question from the complainant and she has not at all 10 C.C.NO.13638 OF 2017 issued the Ex.P1 for discharge of the loan in question to the complainant to substantiate the same, she ought to have gave stop payment instruction to her banker, she ought to have take any legal action against the complainant, she ought to have challenged the cognizance taken by this Court. Therefore, non-performing the aforesaid legal proceedings that itself, it is very much fatal to the alleged defence set-up by the accused during the course of PW-1 and during the course of her evidence.
16. There is no dispute that, Ex.P1 cheque is belonging to her own bank account cheque and signature found on the Ex.P1(a) is her own signature. Therefore, it can be presumed that, the accused has issued the Ex.P1 to the complainant knowing fully well without having sufficient funds in his bank account with an intention to defeat the claim of the complainant. Further, no ordinary prudent man will issue signed blank cheque to any other persons without having monetary transaction.
17. The drawer of the cheque have to take abundant precaution prior to issuance of cheque in question. Therefore, in the instant case also. It can be presumed that, no any ordinary prudent man will issue signed blank cheque to any other persons without having monetary transaction between themselves. Further, the complainant has proved his case by adducing cogent and corroborative 11 C.C.NO.13638 OF 2017 evidence as per the section 138 of N.I.Act., on the other hand, the accused has failed to rebut her defence by adducing cogent and corroborative evidence. Hence, the probability of the preponderance is higher on the side of the complainant, rather than the accused.
18. Ordinarily offence under Section 138 of N.I.Act "mensrea" is not essential, under Section 138 of N.I.Act , is bring into operation rule of strict liability, whereas, "mensrea" is essential ingredients in criminal offences. Therefore, The complainant has proved her case against the accused, since offence under Section 138 of N.I.Act element of Mensrea has been excluded in general public interest to curb the instances of dishonouring of cheques and to lend the credibility to the commercial transaction. Therefore, in this case also the accused knowing fully he was borrowed the loan in question from the complainant and for discharge the loan in question she has issued the Ex.P1 to the complainant. Since the present complaint is summary trial and quasi-criminal in nature, it is like recovery proceedings and punishment is fine or in default of it simple imprisonment.
19. Hence, in the light of the above observation, the complainant has successfully proved that, the accused has committed offence punishable under Section 138 of N.I. Act with these reasons, I am the opinion that, the complainant 12 C.C.NO.13638 OF 2017 successfully established before the Court, the accused has issued Ex.P1 to the complainant for the legally recoverable debt including cost of interest. Therefore, I answer the point No.1 in the affirmative.
20. Point No.2 :- In view of my findings on Point No.1 in the affirmative, I proceed to pas the following...
ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
The accused shall pay a fine of Rs.5,02,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for Two Months.
Further, ordered that, out of the said fine amount of Rs.5,00,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and remaining an amount of Rs.2,000/- shall be remitted to the state as fine.
The bail bond and surety bond of the accused stands canceled.
Free copy issued to the accused.
13 C.C.NO.13638 OF 2017(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified, corrected and then pronounced by me in the open Court on this the 1st day of December 2018).
(Rajkumar.S.Amminbhavi) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the complainant:
PW-1 Srinivasa Gowda List of documents exhibited on behalf of the complainant:
Ex.P.1 Cheque Ex.P.1(a) Signature of the accused Ex.P.2 & 3 Two bank endorsements Ex.P.4 Office Copy of the legal Notice Ex.P.5 Postal receipt Ex.P.6 Returned Postal cover Ex.P.6(a) Copy of the legal notice kept in Ex.P6
List of witnesses examined on behalf of the accused :
DW.1 Lakshmamma List of documents exhibited on behalf of the accused :
NIL XII Addl. Chief Metropolitan Magistrate, Bengaluru City.14 C.C.NO.13638 OF 2017
01.12.2018.
Complainant : NS Accused : AK Judgment.
(Vide separate judgment pronounced in the open Court) ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
15 C.C.NO.13638 OF 2017The accused shall pay a fine of Rs.5,02,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for Two Months.
Further, ordered that, out of the said fine amount of Rs.5,00,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and remaining an amount of Rs.2,000/- shall be remitted to the state as fine.
The bail bond and surety bond of the accused stands canceled.
Free copy issued to the accused.
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
16 C.C.NO.13638 OF 2017Heard Inference 17 C.C.NO.13638 OF 2017