Bangalore District Court
Smt. Keerthi vs Smt. Aruna on 29 January, 2020
IN THE COURT OF XXII ADDL. CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU
DATED THIS THE 29TH DAY OF JANUARY, 2019
PRESENT
SMT. JYOTHISHREE RAMAGOWDA PATIL
B.A., LL.B., (Spl)
XXII ADDL. CMM., BENGALURU.
CASE NO. C.C.NO.13225/2017
COMPLAINANT Smt. Keerthi
W/o Sri. Kiran Kumar,
Aged about 35 years,
Occupation: House Wife,
R/at No.16/1, 1st Floor,
8th Cross, II Main, II Stage,
KHB Colony, Near Punya Hospital,
Basaveshwaranagar,
Bengaluru - 560 079.
ACCUSED Smt. Aruna
W/o Sri. Mahesh Gowda,
Aged about 37 years,
Occupation: House Wife,
1st Floor, 5th Cross,
Vasanth Vallabha Nagar,
Navodaya Nagar,
Puttenahalli, 7th Phase,
Near Brigade Millennium,
J.P. Nagar, Bengaluru - 560 011.
OFFENCE U/S. 138 of Negotiable Instruments Act.
C.C.NO.13225/2017
PLEA OF THE Pleaded not guilty.
ACCUSED
FINAL ORDER Accused is Convicted.
(JYOTHISHREE RAMAGOWDA PATIL)
XXII ADDL. C.M.M., BENGALURU.
JUDGMENT
The complainant has filed the complaint under Section 200 of Cr.P.C., against the accused for the offence punishable under Section 138 of Negotiable Instruments Act.
2. The brief facts of the case of the complainant are that;
The complainant and accused are known to each other. The accused was in need of money and she borrowed Rs.6,00,000/- from the complainant on 05.08.2014 by cash agreeing to repay the amount within few months. On the insistence of the complainant the accused issued cheque bearing No.244224 dated 13.03.2017 for Rs.6,00,000/- 2
C.C.NO.13225/2017 drawn on Axis Bank, Basaveshwaranagara Branch, Bengaluru. The complainant presented the cheque for encashment through her banker Karnataka Bank, Basaveshwaranagara Branch, Bengaluru and it came to be dishonoured for the reasons Funds Insufficient on 14.03.2017. The legal notice was issued on 23.03.2017 and the same was received by the accused on 24.03.2017. The accused did not repay the amount. Hence the complaint is filed.
3. The sworn statement of the complainant was recorded as examination-in-chief and the criminal case was registered against the accused. The accused appeared on receipt of summons and got enlarged on bail. The Substance of Accusation was read over and explained to the accused for which he pleaded not guilty and claimed to be tried.
4. The complainant is examined as PW.1 and got marked the documents from EXs.P1 to EX.P10. The statement of accused under Section 313 of Cr.P.C., is recorded. The accused are examined as DW.1 to DW3 and got marked the documents from EXs.D1 to EX.D13.
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5. Heard the arguments. The Advocate for the complainant has filed written arguments.
6. The points that arise for my consideration are as under;
1) Whether the complainant proves that the accused issued cheque bearing No.244224 dated 13.03.2017 for Rs.6,00,000/- drawn on Basaveshwaranagara Branch, Bengaluru towards discharge of legally enforceable liability?
2) Whether the complainant further proves that when she represented the said cheque for encashment, which returned with an endorsement as "Funds Insufficient" and despite receipt of notice also the accused has not complied and thereby committed an offence punishable under Section 138 of Negotiable Instruments Act?
3) What Order?
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7. My answers to the above points are as follows:
Point No.1: In the Affirmative.
Point No.2: In the Affirmative.
Point No.3: As per the final order for the following:-
REASONS
8. Point No.1 and 2: The complainant has deposed that the accused was known to her since 10 years and as per the request made by the accused she lent loan of Rs.6,00,000/- on 05.08.2014 by cash. She has also deposed that the cheque issued by the accused for discharge of loan has been dishonoured. The accused has cross-examined PW.1. It is brought in the cross-examination that the accused is running parlor. It is also deposed by the complainant that the accused has taken loan for purchase of site.
9. The source of income of the complainant is seriously disputed. The complainant has deposed that the amount was secured through her father on 05.08.2014 and same amount was given to the accused. The complainant has not 5 C.C.NO.13225/2017 stated the date of issuance of cheque. But the cheque was presented for encashment on 13.03.2017. The accused has also disputed the contents of the cheque. But signature on the cheque is admitted by the accused.
10. The specific defence of the accused is that the disputed cheque was given to one Pramila Srinivas and the same has been misused by the complainant. When the accused disputed the capacity of the complainant she produced the bank extract of the account as per EX.P4. She was cross- examined on this aspect. She has deposed that the bank account is in joint name of the complainant and her father. The amount was drawn and the same was utilized for the purpose of lease of house. It is also brought in the cross- examination that one Shivakumar has also filed a case against the husband of the complainant. The accused has taken contention that the complainant herself has filed complaint against her husband. The complainant has produced the agreement of sale as per EX.P5 and its payment schedule as per EX.P6. Therefore the defence of the accused is that the complainant is not having financial 6 C.C.NO.13225/2017 capacity to lend loan of Rs.6,00,000/- and the cheque has been misused by the complainant.
11. The accused is examined as DW.1. The accused in this regard has taken steps to examine the Manager of the Axis Bank as DW.2. As per evidence of DW.2 the disputed cheque has been destroyed as per the endorsement which is marked as EX.D4. The evidence of DW.2 by name Umesh and another witness by name Veerendra are examined on behalf of the accused.
12. It is argued for the Advocate for the complainant that it is the accused who has to rebut the presumption. As per the bank endorsement which is marked as EX.P2 the cheque has been dishonoured for the reasons Funds Insufficient. The accused has contended that she has issued a letter to the bank and bank has endorsed regarding destruction of the cheque. It is also argued for the complainant that the complainant and her father are having joint account and there is entry regarding withdrawal of Rs.7,00,000/- on 05.08.2014. But the accused has contended that the complainant has utilized the funds for taking house on lease. 7
C.C.NO.13225/2017 But it is specifically contended by the complainant that she has taken loan from Cholamandalam Finance on 13.01.2014. The Advocate for the complainant relied on EX.P4 to EX.P8 and submitted to consider the income of the complainant in lending loan to the accused. The Advocate for the complainant relied on the Judgment of the Hon'ble Supreme Court reported in 2019 (2) KLJ 717 Supreme Court rendered in the case of Uttam Ram V/s Devinder Singh Hudan and Another.
13. The Advocate for the accused argued before the Court that the case is filed in the year 2017 for the loan amount lent in the year 2014. I have perused the date of transaction which is dated 05.08.2014 and the cheque is dated 13.03.2017 which is within limitation of three years. The learned counsel for the accused argued that the complainant herself has taken loan and she is residing in her father's house. Therefore she is in need of money and she has no capacity to lend loan.
14. The learned Advocate for the accused relied on the Judgments as under.
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1. AIR 2019 Supreme Court 942 in the case of Anss Rajashekar V/s Augustus jeba Ananth in Crl.A.No.95-96/2019 rendered Hon'ble Supreme Court of India.
2. AIR 2019 Supreme Court 1983 in the case of Basalingappa V/s Mudibasappa in Crl.A.No.636/2019 rendered Hon'ble Supreme Court of India.
3. ILR 2008 KAR 4629 in the case of Shiva Murthy V/s Amruthraj.
4. (2008) 4 Supreme Court Cases 54 in the case of Krishna Janardhan Bhat V/s Dattaraya G. Hegde in Crl.A.No.518/2006.
15. I have carefully gone through the Judgment relied by her Advocate. The accused has relied on the document which is marked as EX.D4. It is a statement given by Axis Bank relating to the account of the accused. As per EX.D4 seventeen cheques including the disputed cheque are reported to be destroyed on 12.04.2016. The Manager of the 9 C.C.NO.13225/2017 concerned bank has been examined and he has deposed that EX.D4 is given based on the particulars which are available in their computer system. The disputed cheque bearing No.244224 has been returned as Funds Insufficient as per EX.P2. But the evidence of the Bank Manager is based on EX.D4 which goes to show that the cheque has been destroyed in the year 2016. The specific defence of the accused in the present case is that the cheque was issued in favour of one Pramila Srinivas and the same has been misused by the complainant. As already discussed above the source of income of the complainant which was disputed by the accused is shown by the complainant by producing her joint account statements as well as other income tax documents.
16. The Advocate for the accused relied on the certified copy of the Judgment passed in C.C.No.7592/2018 filed by one Shivakumar against Mahesh Gowda which is ended in Acquittal. As per the argument of the counsel for the accused the complainant has misused the cheque of Mahesh Gowda and handed over it to Shivakumar who is the 10 C.C.NO.13225/2017 complainant in C.C.No.7592/2018. The complainant therein has admitted the said fact and the case came to be acquitted. The learned Advocate for the accused submitted that the complainant has not approached the Court with clean hands.
17. The complainant has specifically denied the suggestion put to her during her cross-examination. The accused has also admitted during her cross-examination that there is matrimonial dispute in between the complainant and her husband. However the matrimonial dispute in between the complainant and her husband is a separate issue. This Court has to determine whether there is legally enforceable liability on the part of the accused. The specific defence of the accused of misuse of cheque by one Pramila Srinivas is not supported by any documentary evidence. The complainant has shown that she has capacity to lend loan of Rs.6,00,000/- in favour of accused and the presumption raised in favour of the complainant remained intact as the accused has failed to rebut the presumption by placing plausible material before the Court.
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18. Herein I rely on the Judgment reported in AIR 2019 Supreme Court 1876 rendered by the Hon'ble Supreme Court of India in the case of Rohit Bhai Jeevanlal Patel V/s State of Gujarath and Another wherein it is held that when all basic ingredients of Section 138, 118 and 139 are apparent on the face of record it is required to be presumed that cheque in question was drawn for consideration and complainant received it in discharge of an existing debt. The Judgment relied by the Advocate for the complainant reported in 2019 (2) Karnataka Law Journal Page 717 SC is also aptly applicable to the present case on hand. Therefore the defence of the accused regarding misuse of cheque is not tenable. Here in the present case the complainant has shown that she received the cheque for enforceable liability from the accused. The accused has not shown sufficient material to rebut the presumption which is drawn in favour of complainant. The accused has failed to disprove the presumption through her oral and documentary evidence. Hence the accused is liable for conviction. Hence Points No.1 and 2 are answered in the AFFIRMATIVE.
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19. Point No.3:- For the aforesaid reasons I proceed to pass the following:
ORDER Acting under Section 255(2) of Cr.P.C., the accused is hereby convicted and sentenced for the offence punishable under Section 138 of Negotiable Instruments Act and directed to pay compensation/fine of Rs.6,50,000/- (Rupees Six Lakhs Fifty Thousand) to the complainant.
In the total compensation/fine amount a sum of Rs.5,000/- (Rupees Five Thousand) shall be paid to the State as fine.
In default of the aforesaid compensation/fine amount the accused shall undergo simple imprisonment for Six months.
(Dictated to the Stenographer on computer, typed by him and corrected and then pronounced by me in the open Court this the 29th day of January 2020).
(JYOTHISHREE RAMAGOWDA PATIL) XXII ADDL. C.M.M., BENGALURU. 13
C.C.NO.13225/2017 ANNEXURE List of Witnesses examined for the complainant:
PW.1 : Keerthi.
List of Witnesses examined for the defence:
DW.1 : Aruna; DW.2 : Umesh Karanth and DW.3 : Veerendra.
List of Documents marked for the complainant:
EX.P1 : Cheque; EX.P1(a) : Signature of the accused; EX.P2 : Cheque Return Memo; EX.P3 : Legal Notice dated 23.03.2017; EX.P3(a) : Postal Receipt; EX.P3(b) : Professional Courier Receipt; EX.P3(c) : Postal Acknowledgment; EX.P4 : Karnataka Bank Ltd., Statement; EX.P5 : e-Stamp Paper of Sale Agreement; EX.P6 : Chola- Welcome Letter; EX.P7 : Statement of SBI; EX.P8 : Statement of Corporation Bank; EX.P9 : Complaint to Halasuru Gate PS and EX.P10 : Acknowledgment.
List of Documents marked for the defence:
EX.D1 : Certified copy of FIR;
EX.D2 : Certified copy of complaint given to
Kamakshipalya PS;
EX.D3 : Certified copy of Charge sheet;
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EX.D4 : Axis Bank letter dated 16.11.2017;
EX.D5 : Certified copy of the order sheet in
C.C.No.26354/2017;
EX.D6 : Certified copy of complaint in PCR
No.12484/2017;
EX.D7 : Photo;
EX.D8 : Certified copy of Absolute Sale Deed
dated 8.09.2014;
EX.D9 : Account Opening Form of Karnataka Bank
Ltd.,;
EX.D9(a) : Signature on the form;
EX.D10 : Statement of Karnataka Bank Ltd.;
EX.D11 : Certified copy of complaint given to
Kamakshipalya PS.;
EX.D12 : Acknowledgment and
EX.D13 : Certified copy of Judgment in
C.C.No.7592/2018.
(JYOTHISHREE RAMAGOWDA PATIL)
XXII ADDL. C.M.M., BENGALURU.
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