Bangalore District Court
Sri.E.V.Rajesh vs Smt. Mehak Chawla @ Rinku Chawla on 14 September, 2021
IN THE COURT OF XX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU CITY
PRESENT: BHOLA PANDIT,
B.Com.,LL.M.,
XX ADDL. C.M.M.
Bengaluru.
Dated this the 14th day of September 2021
C.C.No.11036/2019
Complainant : Sri.E.V.Rajesh,
Aged about 45 years,
S/o E.V.Subbaiah,
R/at No.19, Market Road,
Basavanagudi,
Bengaluru- 560 004.
{ By Sri.M.G.Suresh Holla- Advocate }
Vs.
Accused : Smt. Mehak Chawla @ Rinku Chawla,
Prop:Mehak Chawla,
W/o Vikas Chawla,
At No.202, " Shanthinikethan",
No.6, Andree Road,
Shanthinagar,
Bengaluru- 560 027.
And also at:
Smt. Mehak Chawla @ Rinku Chawla,
Prop:Mehak Chawla,
W/o Vikas Chawla,
2 C.C.11036/2019
At No.15 & 16, Bhagwani Bhavan,
Nanjappa Road, Shanthinagar,
Bengaluru- 560 027.
And also at:
Smt. Mehak Chawla @ Rinku Chawla,
Prop:Mehak Chawla,
W/o Vikas Chawla,
At BF2, Sophias Choice, No.7/2,
St.Marks Road,
Bengaluru- 560 001.
{ By Sri.Prasad Subbanna - Advocate }
Offence complied of : U/S. 138 of N.I. Act.,
Plea of accused : Pleaded not guilty
Final Order : Accused is Convicted
Date of Order : 14-09-2021
JUDGMENT
The present complaint is filed under section 200 of code of criminal procedure against the accused for the 3 C.C.11036/2019 dishonour of cheque at Ex.P.1 punishable under section 138 of the Negotiable Instruments Act ( in short referred as "N.I. Act").
02. The briefly stated facts of the complaint summarized as under;
It is alleged that, on 26.09.2018, the accused borrowed a sum of Rs.8,90,000/- from the complainant through RTGS No.YESBR52018092657987882 from YES bank, Basavanagudi Branch, Bengaluru. The accused has agreed to repay the above said loan amount with interest at the rate of 2% per month and has executed on demand promissory note in favour of the complainant. To discharge the above said loan amount, the accused had issued in all ten cheques and out of those ten cheques, eight cheques are the subject matter of the complaint in C.C. No.4812/2019 on the file of this court and one cheque was encashed by the complainant. For the remaining another cheque bearing No.031972 dated 27.11.2018 for Rs.1,00,000/- has 4 C.C.11036/2019 been issued by the accused. On 19.02.2019, the complainant has presented the above said cheque for encashment with his YES bank, BVK Iyengar Road Branch, Bengaluru, same was returned unpaid due to "Funds Insufficient" on 20.02.2019. Therefore, on 20.03.2019, demand notices was issued, which returned unserved on 23.03.2019. Therefore, the accused has failed to pay the cheque amount. Thus, it is sought to convict the accused.
03. On presentation of the complaint and after verification of the averments of the complaint as well as the annexed documents, this court took the cognizance for the offence punishable under section 138 of NI Act. As per the verdicts of the Hon'ble Apex court in the case of Indian Bank Association and others V/s Union of India and others, the sworn statement of the complainant has been recorded by way of examination-in-chief as PW.1 and got marked in all 9 documents at Ex.P.1 to 9. After scrutinizing the oral and documentary evidence of the complainant prima-facie 5 C.C.11036/2019 case is made out for the trial. Accordingly, by registering criminal case in Register No. III, summons has been issued against the accused.
04. In pursuance of the summons, the accused has appeared before the court through his counsel and filed bail application under section 436 of Code of Criminal Procedure, the accused has been enlarged on bail. The accusation has been read over to the accused, she pleaded not guilty and wants to put forth defense. On filing application under section 145(2) of NI Act, accused was permitted to cross examine PW.1. After closure of trial from the complainant's side, the statement under section 313 of Code of Criminal Procedure has been recorded and explained to the accused about the incriminating material found in the trial of the case of the complainant. The accused has denied the same and gave her explanation stating that, she has issued the said cheque to one Vikram Chugh as a security and not issued the said cheque to the 6 C.C.11036/2019 complainant. To disprove the case of the complainant and also to establish her defense before the court, the accused entered in the witness box and adduced her ocular evidence as DW.1 and have not got marked any documents on her behalf.
05. On closure of the trial, the oral arguments advanced by the Learned counsels appearing for the respective parties. The Learned counsel for the defense counsel has also filed written arguments.
06. The following points that arise for my consideration are as under;
POINTS
1. Does the complainant proves beyond reasonable doubts that, the accused has issued a cheque bearing No.031972 dated 27.11.2018 for Rs.1,00,000/-
towards the discharge of her lawful liability of the complainant and when the said cheque was presented for encashment on 19.02.2019, it was returned unpaid due to "Funds 7 C.C.11036/2019 Insufficient" in the account of the drawer as per banker's memo dated 20.02.2019 and inspite of issuance of demand notice dated 20.03.2019, the accused has failed to pay the cheque amount, thereby has committed the offence punishable under section 138 of NI Act?
2. What Order or sentence ?
07. My findings to the above points is as follows;
1. Point No.1: In the Affirmative
2. Point No.2: As per final order for the following;
REASONS
08. POINT No.1: It is the case of the complainant that, In order to discharge the legally enforceable debt, the accused has issued a cheque at Ex.P.1 and the said cheque was presented for encashment, it returned unpaid as per banker's memo at Ex.P.2 due to "Funds Insufficient". Accordingly, as per Ex.P.3 complainant issued demand notice to the accused , which is unserved and inspite of that, the accused has failed to make the payment of cheque amount.
8 C.C.11036/2019
09. To establish his case before the court, the complainant's sworn statement has been recorded and as per the verdicts of the Hon'ble Apex court in the case of Indian Bank Association and others V/s Union of India and others, the sworn statement of the complainant has been recorded by way of examination-in-chief as PW.1. PW.1 has replicated the averments of the complaint. PW.1 has been categorically cross examined by the defense counsel. The complainant in all has produced 9 documents marked at Ex.P.1 to 9. Ex.P.1 is the alleged cheque, which depicts the name of the payee is mentioned as E.V.Rajesh HUF dated 27.11.2018 for Rs.1,00,000/- signed by Mehak Chawla, Ex.P.2 is the banker's memo, which speaks that, the cheque at Ex.P.1 was presented to YES bank for encashment on 19.02.2019, and on 20.02.2019, it returned unpaid due to "Funds Insufficient" in the account of the drawer. Ex.P.3 is the demand notice, which is replicated of the averments of the complaint, Ex.P.4 to 6 are the postal receipts and Ex.P.7 to 9 are the un- disputed closed postal 9 C.C.11036/2019 envelopes, address in the name of the accused from one M.G.Suresh Holla Advocate.
10. In support of her defence, the accused herself entered in the witness box and lead her oral evidence as DW.1. She stated that, she had not borrowed loan from the complainant. She availed loan from one Vikram Chugh and the alleged cheques were given to Mr. Vikram Chugh as a security documents with a request to draw Rs.1,00,000/- per month by presenting those cheques. She further stated that, without mentioning date, she has issued those eight cheques to Mr.Vikram Chugh and also not mentioned the name of the payee in those cheques. She had issued those cheques to Mr.Vikram Chugh only he transferred to her account through RTGS. She also executed on demand promissory note to Mr.Vikram Chugh. She stated that, false complaint is lodged against her. Accordingly, she is sought to dismiss the complaint. The Learned counsel for the accused has cross examined DW.1 at length. 10 C.C.11036/2019
11. The Learned counsel for the complainant argued that, the issuance of cheque at Ex.P.1 and the signature on the cheque is undisputed and also the signature on the on demand promissory note not in dispute. Therefore, he has sought raise statutory presumptions under section 118 and 139 of NI Act in favour of the complainant. He further argued that, the accused not examined the said Mr.Vikram Chugh in support of her defense. Therefore, her oral testimony is not having probative value to rebut the presumptions. Hence, he has sought to convict the accused as sought for.
12. Per contra, the Learned counsel for the defense argued that, the writings and the amount in words on Ex.P.1 to 8 ( in C.C.4812/2019) which are different hand writings. The hand writings on Ex.P.1 to 8 and on Ex.P.24 are different ( in C.C.4812/2019). So, this aspect raise doubt in the case of the complainant. He further argued that, there is a delay in presentation of cheques to the bank 11 C.C.11036/2019 and for which no explanation is offered. He further pointed out towards last two lines of page No.3 of cross examination of DW.1 coupled with the documents at Ex.P.26 ( in C.C.4812/2019). Just for wrongful gain, the present complaint is lodged. Therefore, it is sought to dismiss the complaint and acquit the accused.
13. 'The cheque is a bill of exchange and it is Negotiable Instrument as per chapter-II of NI Act. The cheque is a bill of exchange drawn on specified banker and not expressed to be payable, otherwise, then on demand'.
14. In the instant case, upon the considering the averments of the complaint, the evidence of PW.1 and also the evidence of DW.1, the issuance of cheque at Ex.P.1 and the signature therein, is not disputed and this fact is admitted by the DW.1 in her cross examination. Therefore, as per the verdict of the Hon'ble Apex court reported in, 12 C.C.11036/2019 2010(11) SCC 441, in the case of Rangappa Vs. Mohana, the Hon'ble Apex Court, it is held that;
" Once the cheque relates to the account of the accused and he accepts the same and also admits his signature on the cheque, then the initial presumption under section 139 of NI Act as well as under section 118 of NI Act has to be raised in favour of the complainant. It is a mandatory presumption. But the accused is entitle to rebut the same on preponderance of probabilities."
Once the issuance of the cheque and signature therein, then admitted it is a mandatory on the court to draw the presumptions in favour of the complainant that, the said cheques have been issued by the accused towards the discharge of her lawful debt and that the complainant is the due holder of those cheques. Now, the burden is on the accused to rebut the statutory presumptions by bringing on record with cogent and probable evidence. It is well settled rule that, in order to rebut the said presumption under section 139 of NI Act. The accused can very much gather the material evidence from the 13 C.C.11036/2019 complainant itself or he can produce those evidence from his side independently. In the reply notice at Ex.P.23 ( in C.C.4812/2019) and the evidence of accused as DW.1, it is her specific defense that, she borrowed Rs.10,00,000/- loan from one Mr. Chugh and for the discharge of the said loan amount, she has issued 10 cheques as security to the said Mr.Chugh and out of those 10 cheques, the present cheque at Ex.P.1 is misutilized and filed the present complaint . On careful perusal of the reply notice at Ex.P.23 ( in C.C.4812/2019), particularly in para No.2 to 4, no where she has mentioned that, when she has availed loan from Mr.Vikram Chugh and even in her oral evidence before the court, she has not mentioned the date, month and year of her obtaining loan from Mr.Chugh.
15. On the contrary, the document at Ex.P.25 ( in C.C.4812/2019), the bank account statement has been got marked during cross examination of DW.1 and she has admitted clearly about the Ex.P.25 stating that, on 14 C.C.11036/2019 26.09.2018, the amount of Rs.8,90,000/- was made as RTGS through this account at Ex.P.25. The account number shown in Ex.P.25 is same account number, which is mentioned in the complaint as account number 092490100000173 and the same is standing in the name of the complainant E.V.Rajesh Huf. Even DW.1 has admitted in her cross examination on page No.4 that, she has obtained amount from the complainant, but further stated that, she do not know the complainant. By the evidence of PW.1 coupled with the documents at Ex.P.25, it can be safely held that, the accused borrowed hand loan Rs.8,90,000/- from the complainant through RTGS. On the other hand, except the contention of learned defense counsel, other than the oral evidence of DW.1 neither the bank statement of Vikram Chugh is produced nor the said Vikram Chugh has been examined before the court. Even the accused has not produced her bank account statement to substantiate her contention that, she has received Rs.8,90,000/- from the account holder other than the 15 C.C.11036/2019 account of the complainant. That apart, DW.1 is also admitted the document i.e., bank account statement of the complainant at Ex.P.26 ( in C.C.4812/2019) and as per this document, on 30.10.2018 accused has transferred Rs.1,00,000/- through NEFT to the account of E.V.Rajesh Huf, who is none other than the complainant. If the accused not availed any amount from the complainant, then why she has transferred Rs.1,00,000/- to the account of the complainant as per Ex.P.26 remains a question, which is not at all neither answered nor explained by the accused. On the other hand, the document produced at Ex.P.26 strengthen the case of the complainant with regard to part payment of Rs.1,00,000/- by the accused as contended in para No.3 of the complaint. Therefore, the oral testimony of DW.1 do not appears to be probable evidence to rebut the presumptions under section 139 of NI Act. Therefore, the contention of the learned defense counsel as narrated above is un- tenable. In the recent judgment reported in, 2021(1) KCCR 542, in the case of K.Kupparaj Vs. 16 C.C.11036/2019 J.Thrilokamurthy, in Crl.Rev. Petition No. 606/2020, wherein, the Hon'ble High Court of Karnataka pleased to held as under;
" Accused not rebutting presumption attached to cheque under section 139 of NI Act. - plea that the cheque in question was issued to some other person- not proved - nothing to show that cheque in question was misused- accused only to escape from the liability taking of lame excuses- conviction justified".
Therefore, by the oral testimony of PW.1 coupled with the cheques at Ex.P.1, I am of the considered opinion that, the accused has issued the cheque at Ex.P.1 to the complainant towards discharge of her lawful debt and inspite of issuance of demand notice at Ex.P.3, she has failed to make the payment of cheque amount. The oral evidence of DW.1 are not sufficient material to hold that, there is a probable evidence to rebut the statutory presumptions under section 118 and 139 of NI Act. Therefore, I answered point No.1 in the affirmative. 17 C.C.11036/2019
16. POINT NO.2: In view of the reasons stated and discussed above, the complainant has proved the guilt of the accused punishable under section 138 of N.I. Act It is worth to note that, the offence is of the nature of civil wrong. Hence, it is proper to award sentence of fine, instead of awarding sentence of imprisonment. Accordingly, this court proceed to pass the following;
ORDER
Acting under section 255 (2) of
Criminal Procedure Code, accused is
hereby convicted for the offence
punishable under section 138 of
Negotiable Instrument Act and
sentenced to pay fine of Rs.1,10,000/-
(Rupees One Lakh Ten Thousand
only). In default, he shall undergo
simple imprisonment for 1 (One)
month.
Acting under section 357(1) of
code of criminal procedure, it is
ordered that an amount of
18 C.C.11036/2019
Rs.1,05,000/- ( Rupees One Lakh
Five Thousand only), there from
shall be paid to the complainant as a
compensation, remaining fine amount of Rs.5,000/- (Rupees Five Thousand only) is defrayed to the state for the expenses incurred in the prosecution.
The bail bonds of accused stands canceled subject to appeal period.
Supply free copy of judgment to the accused.
{Dictated to the stenographer, transcribed and computerized by her, revised corrected and then pronounced in the open court on this 14th day of September 2021}.
(BHOLA PANDIT) XX ACMM, Bengaluru.
19 C.C.11036/2019ANNEXURE List of witnesses examined on behalf of complainant:
P.W.1 E.V.Rajesh List of documents produced on behalf of complainant:
Ex.P.1 Cheque Ex.P. 1(a) Signature of the accused Ex.P. 2 Bank endorsement Ex.P. 3 Copy of the legal notice Ex.P. 4 to 6 Postal receipts Ex.P.7 to 9 Unserved postal covers
List of witnesses examined on behalf of accused:
D.W.1 Mehak Chawla @ Rinku Chawla 20 C.C.11036/2019 List of documents produced on behalf of accused:
-Nil-
XX A.C.M.M., Bengaluru.