Bangalore District Court
Mrs Mamatha vs Mrs Sharada on 1 February, 2020
IN THE COURT OF XXXIII ADDL. CHIEF
METROPOLITAN MAGISTRATE, MAYO HALL UNIT,
BENGALURU
: PRESENT :
PADMA PRASAD, BA (Law), LLB.
XXXIII ADDL.CHIEF METROPOLITAN MAGISTRATE,
BENGALURU.
DATED THIS THE 1ST DAY OF FEBRUARY, 2020.
C.C.No.58699/2018
COMPLAINANT : Mrs Mamatha
Aged about 32 years,
W/o Singaraiah,
R/at No.48, Flower Garden,
Opp Promise Centre,
Babusapalya, Kalyannagar,
Bengaluru 560043
.Vs.
ACCUSED : Mrs Sharada,
Aged about 43 years,
W/o Kumar, No.195, Readers
Block, HRWA Layout,
10th Main, Horamavu,
Bengaluru 560043
****
JUDGMENT
This complainant filed this complaint against the accused for the offence punishable under Section 138 of Negotiable Instruments Act.
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2. The complaint case in nutshell is that the accused is having acquaintance with the complainant for last 8 years. In the 1st week of January 2018 the accused approached and requested the complainant to lend a sum of Rs.1,50,000/ as hand loan for her urgent necessities and promised the complainant that she will repay the same in 3 months. Accordingly, the complainant lent a sum of Rs.1,50,000/ to the accused in the second week of January 2018. The accused towards the discharge of said debt has issued a cheque bearing No.190318 dtd:22.06.2018 for Rs.1,50,000/ drawn on State Bank of India, Horamavu Branch, Bengaluru. When the complainant presented the said cheque for encashment, that has been dishonoured as per bank memo dtd:25.06.2018 stating "Funds Insufficient"
& "Account Inoperative". Thereafter the complainant caused a legal notice to the accused on 28.06.2018. The said notice has not been served on to the accused and returned back to the sender with shara "Refused". The accused failed to pay the cheque amount. Hence, filed this complaint.3
C.C.No.58699/2018
3. After filing the complaint, sworn statement of the complainant has been recorded and on perusing the materials on record i.e., cheque, bank endorsement, legal notice and documents for having been caused the notice to the accused, the court has been taken the cognizance of offence and issued summons to the accused.
4. In response to the summons, the accused appeared through his counsel and he was on court bail. Plea has been recorded; accused pleaded not guilty and claimed to be tried.
5. To prove the case, the complainant got examined himself as P.W.1 and got marked documents at Ex.P.1 to P.5. Inspite of sufficient opportunity the accused neither led his defense nor got marked any documents on his behalf.
6. On closure of complainant side evidence, the accused statement has been recorded under Sec.313(1)(b) of Cr.P.C., by placing the incriminating evidence appeared against the accused that are denied by the accused.
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7. On the basis of above, the point for consideration is that;
"Whether the complainant has proved that the accused has committed the offence punishable under Sec.138 of Negotiable Instruments Act?"
8. Heard the arguments and perused the materials on record. On that basis my finding on the above point is in the "Affirmative" for the following;
REASONS
9. The complaint case in nutshell is that the accused is having acquaintance with the complainant for last 8 years. In the 1st week of January 2018 the accused approached and requested the complainant to lend a sum of Rs.1,50,000/ as hand loan for her urgent necessities and promised the complainant that she will repay the same in 3 months. Accordingly, the complainant lent a sum of Rs.1,50,000/ to the accused in the second week of January 2018. The accused towards the discharge of said debt has issued a cheque bearing No.190318 dtd:22.06.2018 5 C.C.No.58699/2018 for Rs.1,50,000/ drawn on State Bank of India, Horamavu Branch, Bengaluru. When the complainant presented the said cheque for encashment, that has been dishonoured as per bank memo dtd:25.06.2018 stating "Funds Insufficient"
& "Account Inoperative". Thereafter the complainant caused a legal notice to the accused on 28.06.2018. The said notice has not been served on to the accused and returned back to the sender with shara "Refused". The accused failed to pay the cheque amount. Hence, filed this complaint.
10. The complainant in support of her case got examined herself as P.W.1 by adopting the sworn statement as her evidence and also got marked documents at Ex.P.1 to 5 in support of his case. Ex.P.1 is the cheque, Ex.P.2 is the Bank Return Memo, Ex.P.3 is the office copy of the legal notice, Ex.P.4 is the postal receipt, Ex.P.5 is the returned postal cover, Ex.P.5(a) is the returned postal notice. The issuance of the cheque is also not in dispute. The accused not disputed her signature at Ex.P.1 cheque. The cheque issued by the accused has been 6 C.C.No.58699/2018 dishonoured for want of funds in the bank account of the accused and the cheque has been presented in time. The legal notice has been issued in time and even the complaint has been filed in time. All these facts sufficiently shows that the accused h as issued the cheque in favour of the complainant towards the discharge of legally enforceable debt. Hence, certainly the presumption under Sec.139 of N.I.Act can be drawn in favour of the complainant.
11. When the complainant made out a case to draw a presumption under Sec.139 of N.I.Act, the burden shifts on the accused to prove the contrary to the complaint case.
12. The specific defense of the accused is that the cheque involved in this case has been issued in connection with the chit fund transaction. The accused also claimed that about 7 to 8 years back the complainant was running a chit fund wherein she was the member of the chit fund and at that time the cheque involved in this case has been issued as a security. Hence, the burden of proving this case is on 7 C.C.No.58699/2018 the accused. If the accused fails to prove the said fact the court has to accept the complaint case.
13. The accused taken a specific defense that she has subscried the chit fund with the complainant. The complainant totally denied of running any chit fund at any point of time as well as receiving of any cheque under such chit fund transactions. It is relevant to note that the accused not at all give any explanation to show that in which year actually there was a chit fund transaction, what is the duration of chit fund, what is the monthly subscription to be paid by the accused to the complainant towards the chit fund and when actually the accused received the prized chit fund money are without any explanation. Without there being any such explanation regarding the alleged chit fund transaction certainly, the claim of the accused that there were chit fund transaction cannot be accepted. The moment the accused failed to establish the said chit fund transaction the court has to accept the complaint case that the accused borrowed money from the complainant and to0wards the repayment of said money the cheque involved in this case has been issued by this accused.
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14. The accused claimed that it is a old cheque and issued about 7 to 8 years back. If it were so, the accused claims that the transaction is a old one and if it were so, when the alleged chit fund transaction has been closed has to be explained by the accused. Further, if at all the chit fund transaction has been closed long back, what is the effort made by the accused to get back her cheque given as a security towards the alleged chit fund transaction has to be explained by her. In fact there is no material on record to show that this accused has made any attempts to take back the cheque after the alleged chit fund transaction or she has issued any stop payment instruction in respect of the said cheque. The said conduct also falsifies the defense of the accused.
15. In a criminal trial the accused has the right to remain silent and she need not step in to the witness box but there is a statutory presumption in favour of the complainant for the offence punishable under Sec.138 of N.I.Act. Hence, the burden shifts on the accused to give rebuttal evidence unless the accused 9 C.C.No.58699/2018 destroy the complaint case during the cross examination of complainant. In the case on hand except the oral suggestion of chit fund transaction nothing has been elicited from the mouth of the complainant so that the court can disbelieve the complaint case. Under such circumstances this accused ought to have stepped in to the witness box to substantiate her chit fund transaction. Further, the notice sent to the accused has been returned as the notice has been "Refused". When the notice has been reused then it has to be deemed that the notice has been served on the accused. In spite of the service of the notice the accused failed to give any reply to the notice. Even these facts also probablise the complaint case.
16. It may be true that the cheque is old cheque and the account of the accused is in operative that does not mean that the accused cannot use the cheques obtained by her while opening the bank account. There is also no material on record to show that this accused tried to close her bank account and there was only no transaction in the bank account of the 10 C.C.No.58699/2018 accused. Apart from that the issuance of the cheque in this case is an admitted fact. The complainant may not know whether the cheque is old cheque or new cheque till that has been presented for encashment. In the case on hand the accused failed to make out the probable defense of the chit fund transaction. When the accused failed to make out probable defense the court left with no option than to accept the complaint case. Therefore, for the aforesaid reasons this court is of the humble opinion that the complainant proved his case beyond reasonable doubt.
17. In this case, the complainant has claimed compensation. As per Section 357 of Criminal Procedure Code and as per the ruling reported in; 2001 Cri.L.J. 950 (SC), (Pankajbai Nagibai Patel V/s State of Gujarath), the court can award compensation and there were no limits for the same. As such, the court has to consider how much compensation could be awarded in this case. As per Section 80 of Negotiable Instruments Act, the interest at 18% P.A. can be granted when there is no agreed 11 C.C.No.58699/2018 rate of interest. As per the proved facts of the case, the accused has issued cheque towards the legally enforceable debt, the accused has issued a cheque dated 22.06.2018 as per Ex.P.1 and thus, the accused has to pay interest on the cheque amount from the date of cheque and so, the accused has to pay interest for about 1 year 7 months till this date. If the interest is calculated at 18% P.A. to the cheque amount for the above period, certainly, the complainant is entitled for the suitable compensation to the cheque amount as per Section 80 of Negotiable Instruments Act. The cheques amount in this case is Rs.1,50,000/ and if the interest is calculated for 19 months, the accused shall pay the interest to the complainant at 18% P.A. that amounts to Rs.42,750/. The case is pending nearly about 1 year 7 months as such if the cost of Rs.1,000/ is added to the compensation, it will comes to Rs.1,93,750/ (Cheque amount is Rs.1,50,000/, interest is Rs.42,750/ and cost Rs.1,000/). Hence, this court is of the humble opinion that in all the complainant is entitled for compensation amount of Rs.1,93,750/. Further as per the ruling reported in 2000 Cri.L.J 12 C.C.No.58699/2018 1793(b) SC - (State of Karnataka V/s Krishnappa) wherein it is held that while imposing sentence, the courts are expected to properly operate sentence system, it should be impose such sentence for code offence which serve as detention of commission of like offences by others - Socio economic status, prestige, race, caste or creed of accused or victim are irrelevant considerations in sentencing policy. Hence, in this case also, if the accused is punished with simple imprisonment for one year and pay compensation to the complainant. Anyhow the object of Sec.138 of N.I.Act is to have accountability in the business transaction and the intention of the complainant is only to get his money back. The complainant certainly not interested in sentencing the accused for any imprisonment. Further, the offense is punishable with imprisonment or fine. Anyhow the object of Sec.138 of N.I.Act is to have accountability in the business transaction and the intention of the complainant is only to get his money back. The complainant certainly not interested in sentencing the accused for any imprisonment. Further, the offence is punishable with imprisonment or fine.
13C.C.No.58699/2018 Hence, in this case after awarding the compensation certainly imposing of fine to the accused is sufficient sentence.
18. As per the ruling reported in 2002 Cri.L.L. 1003, SC (Suginthi Suresh Kumar V/s Jagadishan). Where in it is held at page no.1005, at para 5 that:
"In the said decision this court reminded all concerned that it is well to remember the emphasis laid on the need for making liberal use of Section 357(3) of the Code. This was observed by reference to a decisions of this Court in 1988 (4) SCC 551 Hari Singh v. Sukhbir Singh. In the said decision this court held as follows:
"The quantum of compensation may be determined by taking into account the nature of crime, the justness of the claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The 14 C.C.No.58699/2018 payment may also very depending upon the acts of each accused. Reasonable period for payment of compensation, if necessary by installments, may also be given. The court may enforce the order by imposing sentence in default."
19. In view of the aforesaid precedent of Hon'ble Apex Court, if the accused is ordered to further imprisonment of a year in default to pay the compensation will make the ends of justice. Accordingly I answer the above point in "Affirmative". In the result, following;
ORDER Acting under Section 255(2) of Cr.P.C., the accused is hereby convicted for the offence punishable under Sec.138 of N.I.Act and sentenced the accused to pay a fine of Rs.5,000/. In default to pay the fine amount the accused shall undergo simple imprisonment for 3 months.
15C.C.No.58699/2018 Acting under Section 357 of Cr.P.C., the compensation is awarded and the accused shall pay compensation of Rs.1,93,750/ to the complainant. In default to pay compensation, the accused shall undergo simple imprisonment of a period of 1 year.
Office to furnish free copy of this judgment to the accused forthwith.
(Dictated to the Stenographer, transcript thereof is corrected and then pronounced by me in the open court on this the 1st day of February, 2020) (PADMA PRASAD), XXXIII ACMM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : Mrs Mamatha
2. Documents marked on behalf of complainant:
Ex.P.1 : Original cheque
Ex.P.1(a) : Signature of the accused
Ex.P.2 : Bank return memo
16
C.C.No.58699/2018
Ex.P.3 : O/c of the legal notice
Ex.P.4 : Postal receipt
Ex.P.5 : Returned postal cover
Ex.P.5(a) : Returned postal notice
3. Witnesses examined on behalf of Accused:
Nil
4. Documents marked on behalf of Accused:
Nil (PADMA PRASAD), XXXIII ACMM, BENGALURU.