Bangalore District Court
Smt.R.G.Savitha vs Smt.Nalini on 19 January, 2017
IN THE COURT OF THE LVIII ADDL. CHIEF
METROPOLITIAN MAGISTRATE, MAYO HALL UNIT,
BENGALURU
Dated this the 19th day of January 2017
PRESENT:
Sri. Nataraj.S. B.A.L, LLB.,
LVIII Addl. Cief Metropolitan Magistrate
Bengaluru.
CASE NO C.C.No.52225/2015
COMPLAINANT Smt.R.G.Savitha,
Aged about 28 years,
Residing at No.12, "Vasavi Enclave"
S.N.T. Street, Ulsoor,
Bangalore-560 008.
ACCUSED Smt.Nalini
W/o Arokya Seelam,
Aged about 34 years,
Residing at No.07,
3rd Floor, 4th Main, Near Ayyapan
Temple, Shamanna Gowda
Layout, Ulsoor, Bangalore-08.
OFFENCE U/s 138 of Negotiable Instruments Act
PLEA OF THE Pleaded guilty
ACCUSED
FINAL ORDER Accused is convicted
(NATARAJ.S.)
LVIII ADDL.C.M.M.BENGALURU
2 CC.No.52225/2015
JUDGMENT
The complainant filed a complaint Under Section 200 of Cr.P.C for the offence punishable Under Section 138 of Negotiable Instrument Act.
2. The case of the complainant is that:
The accused is known to complainant and her mother. The accused is running a chit business, the complainant joined the chit conducted by the accused for Rs1,20,000/- and she paid 30 installments of Rs.4,000/- every month. The said chit was closed on October 2014. The accused has to pay entire chit amount of Rs.1,20,000/- to the chit holder. In the month of October 2015 the complainant approach the accused regarding payment of chit amount. The accused had paid only Rs.3,000/- and assured to pay the remaining amount. Subsequently, towards discharge of repayment of chit amount liability, accused issued a cheque bearing No. 540232 for Rs.1,17,000/- dated 27.11.2014, drawn on Indian Bank, Ulsoor Branch, Car Street, Bangalore to the complainant. The complainant presented the cheque through her banker, same was returned as "Funds Insufficient" on 25.2.2015.
Thereafter, the notice was issued on 24.3.2015 through RPAD to 3 CC.No.52225/2015 accused resident and her mother resident. The RPAD sent to her resident and her mother resident was returned with share "insufficient address" the accused failed to pay within 15 days from the date of deemed service of notice. Accordingly, file the complaint against the accused for the offence punishable under section 138 of Negotiable Instrument Act.
3. The Cognizance was taken, summons was issued to the accused. She has appeared through her counsel. The copy of the complaint was furnished to her. The accusation was read over and explained to her, she pleaded not guilty and claimed to be tried.
4. The complainant in prove of her case examined herself as P.W.1 in her support Ex.P.1 to P.7 documents are marked.
5. The statement of accused Under section 313 Cr.P.C. has been recorded. The accused denied the incriminating evidence appeared against her. Accused did not adduce defense evidence on her behalf.
6. Heard arguments of learned counsels for both sides. 4 CC.No.52225/2015
7. On consideration of contention of both sides and material on records, the following points that arise for consideration are as follows:
1. Whether the complainant proves that the notice has been served upon the accused U/S 138 (b) of NI Act?
2. Whether accused rebuts the presumption available in favour of complainant under section 139, 118 of Negotiable Instrument Act, that the issuance of cheque was not for consideration and to discharge legally enforceable debt or liability?
3. Whether the complainant proves that accused committed an offence Punishable Under Section 138 of NI Act?
4. What order?
8. My answers to the above points are as follows:
Point No.1: In the Affirmative Point No.2: In the Negative Point No.3: Partly in the Affirmative Point No.4: As per final order For the following;5 CC.No.52225/2015
REASONS:
9. Point No.1:- The complainant in order to establish the guilt of the accused U/S 138 of NI Act. She has to satisfied the ingredients of section 138 of the act. In Jugesh Sehgal Vs Shamsheer Singh Gogi reported in (2009) 14 SCC, 683 held as follows:
(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
(ii) the cheque should have been issued for the discharge, in whole or on part, of any debt or other liability.
(iii) That cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
(iv) That cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(v) The payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank 6 CC.No.52225/2015 regarding the return of the cheque as unpaid.
(vi) The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
According to the complainant, in the complaint and in her evidence on dishonour of cheque Ex.P.1. Notice under section 138(b) of NI Act was issued through RPAD to the accused to her resident and her mother resident, the same was returned as 'insufficient address" after expiry of 15 days from the date of return of notice the accused did not make payment.
10. The counsel for accused in the cross examination of PW1 and also in the arguments contended that there is no due service of notice as required under section 138 (b) of NI Act. The complaint itself is not maintainable. He has also relied the evidence of PW1 wherein she has answered the notices sent to accused were returned as " insufficient address" the same has been mentioned in the complaint as well as in the her chief examination.
7 CC.No.52225/2015
11. The counsel for complainant argued, though the notices sent to accused to her mother resident was returned as 'insufficient address' notices sent to accused resident was returned as "addressee left". It is a deemed notice of service under section 27of General Clause Act. The learned counsel further argued that the address mention in Ex.P.7 postal cover is the address mentioned in the complaint cause title. The summons was duly served on the accused upon same address and she has appeared through her counsel, there is a valid due service of notice, the endorsement made on Ex.P.7 postal cover is incorrect.
12. In view of above said ruling contentions, the court required the consider whether there was a due service of notices to the accused before filing the complaint. In this regard Hon'ble Apex Court in reported ruling M/s Ajeet Seeds Ltd Vs V.K.Gopala Krishnaiah it is held that;
under section 27 of General Clause Act gives raise to a presumption that service of notice has been affected when its sent to the correct address by the registered post. In view of said presumption, when stating that notices has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of return of the notice unserved, it is deemed to have being served or that the addressee is deemed to have acknowledge of the notice. Unless and until the contrary is proved by the 8 CC.No.52225/2015 address, the service of notice is deemed to have been effected at the time at which the letter would have been delivered in ordinary course of business Therefore, in view of above said ruling in the present case the complainant issued Ex.P.3 notice to following address;
Smt.Nalini W/o Arokya Seelam, Aged about 34 years, Residing at No.07, 3rd Floor, 4th Main, Near Ayyapan Temple, Shamanna Gowda Layout, Ulsoor, Bangalore-08.
which came to be returned as per Ex.P.7 postal cover endorsement stating addressee left hence return to sender. The another notice was also sent to the accused to the address as per Ex.P.6 postal cover. The said notice was returned as 'insufficient address'.
13. In the cross examination of PW1, the learned counsel for accused mainly contended in para -3 with an intention to avoid service of summons the false address has been shown in the letter. However, the complainant has stated as per the address furnished by the accused she had sent notices to her. Under Section 114 of the Evidence act enables the court to presume that in the common course of actual events, the communication would 9 CC.No.52225/2015 have been delivered at the address of the addressee. Under section 27 of General Clause Act gives a raise to presumption that services of notices has been effected when it is sent to correct address by the register post. The accused either in the cross examination of PW1 or through her defence evidence not stated what is her correct address, contrary to address shown in the complaint and also in Ex.P.6 and 7 of Postal covers. There is even not a suggestion in the cross examination of PW1 stating that in which address she is residing. On the other hand in the complaint cause title the address mentioned as;
Smt.Nalini W/o Arokya Seelam, Aged about 34 years, Residing at No.07, 3rd Floor, 4th Main, Near Ayyapan Temple, Shamanna Gowda Layout, Ulsoor, Bangalore-08.
The summons was issued to same address. As per the summons form available in the file. The police made endorsement the accused on 29.8.2015 personally received the summons, the signature of accused is also found in the summons, which is not denied. The endorsements made in Ex.P.6 & 7 postal cover by the postal authority appears to be incorrect. The accused residing in the address where the notices was sent to her. Thus, there is 10 CC.No.52225/2015 deemed service of notice and she has having knowledge of the notices. Therefore, there is no substance in the contention of learned counsel for accused that no notices was served upon accused. The accused failed to rebutted the presumption under section 27of General Clause Act that notices was not properly served upon her. Hence, I answer Point No.1 in the Affirmative.
14. Points No.2 and 3: The case of the complainant in her evidence and in the complaint, the accused was running chit business she had joined the chit for Rs.1,20,000/- and paid every month Rs.4,000/- each for 30 months. After close of chit in the year 2014 the accused liable to pay a sum of Rs.1,20,000/- to chit holder, but she had paid only Rs.3,000/-, for balance liability she had issued Ex.P.1 cheque for Rs.1,17,000/-.
15. The accused by way of cross examination of PW1 admitted the Ex.P.1 cheque belongs to her. Signature found thereon is also belongs to her. Once issuance of cheque and signature admitted on fulfilling the requirements of section 138 of NI Act. The mandatory presumption has to be drawn. As per ruling of Hon'ble Supreme Court in Hon'ble Supreme Court in 11 CC.No.52225/2015 (2010) 11 SCC 4413 Rangappa Vs Sri Mohan , pleased to observe that;
the presumption mandate by section 139 of the Act does indeed include existence of legally enforceable debt or liability. It is further observed in the judgment that the same is of course in the nature of a rebuttal presumption and it is open to the accused to raise a defense, wherein the existence of legally enforceable debt or liability can be contested. However, the initial presumption lies undoubtedly in favour of the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually imposed an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail.
12 CC.No.52225/2015
16. In view of above said ruling, the accused by way of probable defense rebut the presumption that the cheque was issued not for legally enforceable or existing debt and there was no consideration was passed to the holder in due course. It is also clear from the above said ruling rebuttal of presumption proof on the basis of preponderance of probability, in order to rebut the presumption the accused did not necessarily entered into witness box. On the other hand on the basis of material available on record she can relied and rebutted it.
17. In the present case on hand complainant produced Ex.P.1 cheque, Ex.P.2 is the endorsement issued by the Bank stating that cheque has been returned due to "insufficient funds". Ex.P.3 is the notice. Admittedly, the cheque was issued by the accused, the signature is belongs to her. On presentation of cheque admittedly, dishonoured with 'funds insufficient'.
18. The learned counsel for accused argued that the complainant admitted in her evidence that except the signature remaining part of writing on cheque was written by the complainant, defense is probable false case is filed. 13 CC.No.52225/2015
The complainant-PW1 in her cross examination admits as follows;
FUÀ £ÉÆÃqÀÄwÛgÀĪÀ ¤¦1 ZÉPï£À°ègÀĪÀ £À£Àß ºÉ¸ÀgÀÄ ºÁUÀÆ ¢£ÁAPÀªÀ£ÀÄß £Á£ÀÄ §gÉ¢zÉÝÉÃ£É ºÁUÀÆ G½zÀ §gÀªÀuÉUÉ ¨ÉÃgÉ ±Á»AiÀÄ°èzÉ JAzÀgÉ ¸Àj So according to the complainant name and date has been filled by her and remaining handwritings are in different ink. The instrument may be wholly blank or incomplete holder thereof has authority to make or complete the instrument as negotiated one in view of section 20 of NI Act. Section 20 of NI Act which reads as follows:
" Section 20: Inchoate stamped instruments. Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in 2 (India), and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount; provided that no person other than a holder in due course shall recover from the person delivering the instrument any thing in excess of the amount intended by him to be paid there under'.14 CC.No.52225/2015
19. In view of section 20 of NI Act, it is immaterial where the ink used for filling the blank is same or different then the ink used to affix the signature. There is no substance in the submission made by the learned counsel for the accused. The accused in the cross examination of PW1 by way of defense contended the cheque in question was issued towards security of loan borrowed from the complainant of Rs.18,000/-, on repayment of said loan complainant did not return the said cheque. However, it is elicited that the complainant has written only her name and date and remaining handwriting including the amount in words and in figures are written by the accused with her signature. If really as per the contention of accused she had borrowed Rs.18,000/- from the complainant as a hand loan what was the necessities to issue a cheque for Rs.1,17,000/- it is not explained by her either in the 313 statement or by way of evidence by stepping in to witness box. Therefore, the defense taken by the accused that it was a loan transaction towards security the cheque in question was issue in favour of complainant is not probable and acceptable.
20. In the cross examination of PW1 the complainant capacity to pay Rs.4,000/- every month for 30 months towards 15 CC.No.52225/2015 chit is not disputed. On the other hand it is elicited in the cross examination of PW1 since 2011 she is running cloth business, it means she had income at relevant point of time to pay chit amount every month. No doubt, the complainant not produced document about the chit business and payment of Rs.4,000/- every month to accused. Therefore, the complainant case is acceptable and succeeded her case against accused, the issuance of cheque not being denied or signature on the same was not being denied and banker having endorsed that the cheqe was being dishonour for wants of 'funds insufficient' would adequately establish the ingredients of offence punishable under section 138 of NI Act. The accused is found guilty for the offence punishable under section 138 of NI Act she is liable to convicted. The cheque amount is Rs.1,17,000/- considering the transaction, which was taken place in the 2014 there is no material that the accused is habitual or repeated offender so as to impose sentenced of imprisonment. In the opinion of the court if accused is order to pay fine of Rs.1,55,000/- out of which Rs.1,50,000/- is ordered pay to the complainant as a compensation under section 357(1) Cr.p.c. Accoridngly, I answer Point No.2 in the negative and Point No.3 partly in the affirmative.
16 CC.No.52225/2015
21. Point No.4: For the aforesaid reasons and findings I proceed to pass the following;
ORDER Acting Under Section 255(2) of Cr.P.C accused is hereby convicted for the offence punishable under section 138 of Negotiable Instrument Act ;
and she is sentenced to pay a fine of Rs.1,55,000/-, of which Rs.1,50,000/- shall be paid as compensation to the complainant in term of section 357(2) of Cr.P.C In default of payment of fine by the accused she shall suffers simple imprisonment for a period of 3 months The bail bond and cash security deposit shall be continue till payment of fine amount.
Supply the free copy of this judgment to the accused forthwith.
(Dictated to the stenographer, transcribe and typed by her, corrected by me and pronounced in the open court on this 19th day of January 2017) Sd/-
(NATARAJ.S.) LVIII ADDL.C.M.M.BENGALURU 17 CC.No.52225/2015 ANNEXURE Witness examined for the complainant:
P.W.1: R.G.Savitha Witness examined for the defence:
Nil Document marked by the complainant:
Ex.P.1 Cheque dated 27.1.2014
Ex.P.2 Bank endorsement
Ex.P.3 Notice
Ex.P.4 & 5 Postal acknowledgments
Ex.P.6 & 7 Postal covers
Document marked by the defence :-
Nil
Sd/-
(NATARAJ.S.)
LVIII ADDL.C.M.M.BENGALURU