Bangalore District Court
Smt. Vani vs K.Prakash on 4 July, 2018
1 C.C.No.26589/15 J
THE COURT OF THE XVI ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE, BENGALURU CITY
Dated: This the 4th day of July, 2018
Present: Smt. Saraswathi.K.N, B.A.L., LL.M.,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.26589/15
Complainant : Smt. Vani,
Aged about 37 years,
W/o. Srinivas,
No.62, Kanthamma -
Chikkanarayanappa Nilaya,
7th Cross, B.S.K. II Stage,
Sapalamma Temple street,
Kadheerenahalli,
Bengaluru- 560 070.
(Rep.by Sri. R. Raju Guptha.,
Adv.,)
- Vs -
Accused : K.Prakash,
Aged about 42 years,
S/o.A.Krishna (Late),
No.37, 3rd Block,
BMTC Quarters,
Shanti Nagar,
Bengaluru -560 027.
Also at
B M T C , D-13,
K.Prakash,
Mechanic, T.No: 3560,
Kamakya,
Katriguppe Post,
2 C.C.No.26589/15 J
Bengaluru -560 085.
(Rep. by Sri.K. Nanda Gopal, Adv.,)
Case instituted : 4.11.2015
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is convicted
Date of order : 4.7.2018
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, her husband K.Shrinivas and the Accused are known to each other very closely, as they are working together from the last 10 to 11 years and the Accused has become their family friends and being a family friend, the Accused had approached her for some financial help and she, who was doing the soaps and detergent business agreed to lend the money. Accordingly the Accused started to take the hand loan from her from June 2013 to 2014 October and he has received the money from her on various dates.
3. The Complainant has further submitted that, from June 2013 to October 2014, the Accused has received a total 3 C.C.No.26589/15 J sum of Rs.4.5 Lakhs and in the month of June 2015, on her repeated requests and demands, the Accused has issued a post dated cheque bearing No. 999482 dated: 12.7.2015 for Rs.4,50,000/= in her favour.
4. The Complainant has further submitted that, at the time of receiving the aforesaid amount and at the time of issuing the said post dated cheque, the Accused had assured that, he would repay the loan amount and that he would make arrangements to honour the cheque. Thereafter upon his assurance, when she presented the aforesaid cheque through her banker for encashment, the same came to be returned as "Funds Insufficient" vide Bank Endorsement dated: 18.8.2015. Thereafter, though she caused a legal notice to the Accused through speed post and RPAD on16.9.2015 calling upon him to pay the cheque amount to her within 15 days from the date of the receipt of the said legal notice, the Accused has neither replied nor has he paid the cheque amount to her. Hence the present complaint.
5. The Complainant has led her pre-summoning evidence on 13.11.2015 and she has filed her affidavit-in-lieu of her sworn statement, in which, she has reiterated the complaint averments.
4 C.C.No.26589/15 J6. Prima-facie case has been made out against the Accused and he has been summoned vide the order of the same date.
7. The Accused has appeared before the court on 18.3.2016. He has been enlarged on bail and the substance of the accusation has been read over to him, to which, he has pleaded not guilty and has stated that he has his defence to make.
8. In her post-summoning evidence, the Complainant is examined as P.W.1 and she has filed her affidavit, in which, she has reiterated the complaint averments.
9. In support of her oral evidence, P.W.1 has produced and relied upon the documentary evidence as per Ex.P1 to P7 which is as follows:-
The original cheque dated 12.7.2015 as per Ex.P1, the signature on the said cheque identified by P.W.1 as that of the Accused as per Ex.P1 (a), the Bank Memo as per Ex.P2, the office copy of the Legal Notice as per Ex.P3, the Postal Acknowledgement as per Ex.P.4, the retuned Legal Notice as per Ex.P.5, the Postal Envelope as per Ex.P6 and the Postal Receipt as per Ex.P7.
10. During the cross-examination of the Accused two photographs have been marked as Ex.P8 and P.9 and the certificate as per Ex.P.10, the Negative of a photo is as per 5 C.C.No.26589/15 J Ex.P11 and the Certificate issued by the National Co- operative Bank of Banashankari II Stage, Bengaluru is marked as Ex.P12.
The Visiting card in the name of the "Balaji Creations"
is marked through the Accused as Ex.N.1.
11. The statement of the Accused u/Sec.313 of Cr.P.C. is recorded. He has denied the incriminating evidence found against him and has chosen to lead his defence evidence.
12. The Accused is examined as D.W.1 and he has filed his evidence affidavit, which is accepted by this court, as per the direction of our Hon'ble High Court in Afzal Pasha V/s. Mohamed Ameer Jan, reported in LAWS (KAR) 2016 (8) 131, in which, the acceptance of the affidavit of the Accused is permitted by our Hon'ble High Court in accordance with the direction of the Hon'ble Apex Court in the case of the Indian Bank Association Vs., Union of India, reported in (2014) 4 SCC
590.
13. The gist of the defence of the Accused in his affidavit is that, he is working as a Mechanic in the BMTC, 13th Depot at Kamakya, Katriguppe Post, Bengaluru. The husband of the Complainant K.Srinivas is not working with him, but he is working in their depot in different unit and as such, he knows him as a colleague, but he is not very close to him and 6 C.C.No.26589/15 J as such the former is also not a family friend of the said Srinivas.
14. It is further deposed by DW.1 that, he does not know the Complainant and that, he has not even met her and the husband of the Complainant is well known for cheating, manipulating etc., in the Depot and hence he never used to move with him and not only he, but the entire depot members are afraid of him and in the same manner, the Complainant has filed this false case against him on the basis of the instructions given to her by her husband.
15. It is also the defence of the Accused that, when he had not at all moved with K.Srinivas, the question of knowing the Complainant is utterly false and he had neither approached the Complainant at any point of time nor had he taken any hand loan from her as claimed by her in this case.
16. With regard to the cheque in dispute, the defence of the Accused is that, he had lost his non CTS cheque leaves starting with cheque No.999481 to 999490, 560 275004 and also CTS cheque No. 032331 to 032340, 560 275004, all the above mentioned cheque leaves related to the National Co- Operative Bank Ltd., Banashankari 2nd Stage, Bengaluru, which were all only his blank cheques.
7 C.C.No.26589/15 J17. According to D.W.1, he had lost such cheque leaves, while he was traveling in a bus from Banashankari 2nd Stage, BMTC Depot-13 to Wilson Garden on 7.9.2015 at about 6.30 p.m., and in this regard he had lodged a complaint to his banker as well as given Stop payment instructions on 8.9.2015 and had also lodged a complaint before the Wilson Garden Police Station on 8.9.2015 and that he has produced the relevant documents before this court.
18. According to D.W.1, he has not taken any hand loan from the Complainant from June 2013 to October 2014 and hence the question of his issuing the cheque in dispute to the Complainant for a sum of Rs.4,50,000/= is false and that he has not at all issued any cheque to the Complainant.
19. It is alleged by D.W.1 that, the husband of the Complainant has misused his cheque, which he had lost while traveling in a bus, by filling up one of the cheques in his own hand writing.
20. It is the defence of D.W.1 that, after the receipt of the legal notice, he came to know about the false allegations made against him by the Complainant and he has produced the documentary proof to show that, he had availed loan from the National Co-Operative Bank, Banashankari 2nd Stage, Bengaluru on 21.3.2013 to the tune of Rs.1,20,000/= and another loan of Rs.1,26,000/= on 1.12.2014 and hence 8 C.C.No.26589/15 J when he himself had taken the loans from his bank for his necessities, the taking of the loan of Rs.4,50,000/= from the Complainant is totally denied as false.
21. It is alleged by D.W.1 that as per the copy of the Plaint of O.S.No.3989/2014 that he has produced, the husband of the Complainant K.Srinivas has filed a false suit against one advocate by name Smt.Chaithanya T.J for the recovery of a sum of Rs.4,80,000/= by making false allegations against her and he has produced the necessary documents pertaining to the said suit along with the copy of the request letter dated: 18.11.2014, the letter dated:
18.11.2014, the copy of the self drawn cheque dated:
5.5.2015 and 12.8.2015 in his name for the perusal of this court.
Therefore by relying upon the aforesaid facts and the documents, he has prayed for his acquittal.
22. In support of his evidence, D.W.1 has relied upon the documentary evidence as per Ex.D.1 to D.15 which is as follows:-
i) Ex.D1 is the Affidavit dated 6.9.2015 sworn by the Accused;
ii) Ex.D2 is the Endorsement issued by the Wilson Garden Police Station;9 C.C.No.26589/15 J
iii) The two Bank Passbooks of the Complainant as per Ex.D3 and D4;
iv) The statement of accounts as per Ex.D5;
v) The certified copies of the Plaint of O.S.No.3989/2014 and the affidavit in lieu of examination-in-chief of the Plaintiff therein as per Ex.D6 and D7 respectively;
vi) The letter dated 12.4.2017 issued by the National Co-operative Bank as per Ex.D8;
vii) The office copy of the requisition letter dated 18.11.2014 as per Ex.D9;
viii) The letter dated 18.11.2014 issued by the National Co-operative Bank as per Ex.D10;
ix) The certified copy of the On Demand Pronote and the Consideration Receipt as per Ex.D11;
x) The certified copy of the Letter dated 18.11.2014 issued by the National Co-operative Bank as per Ex.D12;
xi) The certified copy of the cheque dated 22.9.2013
in the name of the husband of the
Complainant/K.Srinivas as per Ex.D13;
xii) The certified copies of the cheques dated 5.5.2015 and 12.8.2015 in the name of the self as per Ex.D14 and D15 respectively.
Accordingly he has prayed for his acquittal.
10 C.C.No.26589/15 J23. In support of the defence of the Accused, a witness by name Smt.Chaithanya T.J. is examined as D.W.2 and she has filed her affidavit, which is accepted by this court, as per the direction of our Hon'ble High Court in Afzal Pasha V/s. Mohamed Ameer Jan, reported in LAWS (KAR) 2016 (8) 131, in which, the acceptance of the affidavit of the Accused is permitted by our Hon'ble High Court in accordance with the direction of the Hon'ble Apex Court in the case of the Indian Bank Association Vs., Union of India, reported in (2014) 4 SCC
590.
24. The gist of the defence of the D.W.2 in her affidavit is that, the husband of the Complainant by name K. Srinivas has filed a false suit against her for the recovery of a sum of Rs.4,80,000/= in O.S.No.3989/14 which is pending adjudication and in that suit, the husband of the Complainant has falsely claimed that, he has received a sum of Rs.2,50,000/=from the Accused, for which, in turn, the husband of the Complainant has taken one of her cheques without her knowledge i.e., the cheque bearing No.261095, in which, he himself has filled up the contents and presented the same in the name of the Accused and got it bounced and thereafter he himself has collected the endorsement pertaining to the said cheque and also the letter from the National Co-Operative Bank by misrepresenting the Accused and collected the said dishonoured cheque and thereafter on the basis of the same, had approached the Accused and 11 C.C.No.26589/15 J requested him to file a cheque bounce case against her and when he refused for the same, the said Srinivas K has got filed present case against the Accused, through his wife Smt. Vani/Complainant herein.
25. According to D.W.2, the husband of the Complainant K. Srinivas has filed O.S.No.3989/2014 against her by fabricating and by making false allegations and as such, she came to know about the misuse and the fraud played by Mr. K. Srinivas and his wife/Complainant herein, when he met the Accused after receiving the summons from this court in respect of the present case.
26. DW.1 and D.W.2 have been exhaustively cross- examined by the learned counsel for the Complainant.
27. The Counsel for the Complainant has filed his written arguments, in which, he has prayed for the conviction of the Accused on the following grounds:-
i) The Complainant has proved her case through her oral evidence as well as the documentary evidence;
ii) Though the Accused has denied his acquaintance with the Complainant, during his cross-
examination, his acquaintance with the Complainant has been elicited through the 12 C.C.No.26589/15 J documentary evidence i.e., two photographs as per Ex.P.8 and P.9;
iii) The Accused has also admitted that, he and the husband of the Complainant were always together and that the husband of the Complainant, who used to be with him always, has written the letter as per Ex.D.9;
iv) The Accused has also admitted that, as per Ex.P.12, the husband of the Complainant had stood surety for his loan of Rs.50,000/=. This clearly goes to show that the husband of the Complainant and the Accused are friends and as such the Accused became their family friend;
v) The Accused has taken a highly inconsistent defence with regard to the custody of his cheque with the Complainant and though in the cross- examination of the Complainant, it is suggested to her that, the Accused had lost his 10 cheque leaves including the cheque in dispute, during his cross-examination, the Accused has claimed that, he had lost more than 10 cheque leaves. However, the Accused has not mentioned as to whether the cheques that were allegedly lost by him were signed by him or not and on the contrary in his cross-examination, he has stated that he had 13 C.C.No.26589/15 J signed on 2 to 3 cheque leaves in order to produce the electric items to his house;
vi) The Accused has given the Police Complaint on 8.9.2015, whereas the cheque in dispute is dated:
15.7.2015 and it is presented for encashment on 18.8.2015 and as such it is clear that, as on the date of the swearing to an affidavit as per Ex.D.1, the Accused was not at all in possession of the cheque in dispute;
vii) In his cross-examination, the Accused has admitted the suggestion that, when he went to his bank to collect his salary, he came to know about the cheque in question having got bounced and that thereafter he has lodged the police complaint alleging loan of his cheque;
viii) The Accused has introduced a new defence by claiming that his entire cheque book was lost;
ix) The Accused has admitted in his cross-
examination that, the husband of the Complainant and he had financial transactions and it is the case of the Complainant and also that, the Accused and her husband are friends and that they had financial transactions;
14 C.C.No.26589/15 Jx) The Accused has tried to establish that he himself has lent Rs.2.5 Lakhs to the husband of the Complainant prior to the amount received by him from the Complainant so as to give it to DW.2;
xi) DW.2 has clearly admitted that, she does not know
anything about the transactions which have
transpired between the Accused and the
Complainant and as such her evidence cannot be relied upon by this court;
xii) The Accused has deliberately and intentionally sworn to a false affidavit so as to cheat the Complainant and as such, he has prayed to convict the Accused.
28. During course of his arguments, the learned counsel for the Complainant has produced the notarized copy of the bank Pass book of the Complainant, so as to substantiate before this court that, she had the requisite financial capacity so as to advance the loan to the Accused. Accordingly, he has prayed for the Conviction of the Accused.
29. Per contra, the learned Defence Counsel has also filed his written arguments, in which, he has prayed for the acquittal of the Accused on the following grounds:-
15 C.C.No.26589/15 Ji) The entire case of the Complainant as claimed is denied and the Accused has led his probable defence evidence, which is corroborated through his documentary evidence as per Ex.D.1 to D.5;
ii) The Accused has not availed any hand loan from the Complainant, since he had availed a loan of Rs.1,20,000/= and Rs.1,30,000/= from his bank for a low interest and on this ground alone, the complaint is liable to be dismissed;
iii) The husband of the Complainant has forged the signature of the Accused by presenting the cheque in his name drawn by Smt.Chaithanya T.J/D.W.2 and without the knowledge of the Accused has collected the concerned documents from the bank and compelled the Accused to file a false cheque bounce case against the said Smt. Chythanya T.J, and when the Accused did not heed to the same, the husband of the Complainant/K.Srinivas has got filed this false case against the Accused through his wife;
iv) The cheque in dispute is one of the lost cheques of the Accused, which has been misused by the husband of the Complainant/K.Srinivas by 16 C.C.No.26589/15 J filling up the entire contents in it in his own hand writing;
v) The claim of the Complainant with regard to the alleged lending of the loan to the Accused on different dates is not corroborated either with her pleading or with her documentary proof and this clearly goes to show that, she has not paid any amount to the Accused;
vi) The Complainant has failed to establish her source of income, so as to have lent the loan to the Accused;
vii) The Complainant has not produced her bank Pass book relating to the concerned period and that clearly goes to show that, she has cooked up a concocted and imaginary story, which is also unsupported by pleading;
viii) The Complainant has admitted that, her husband has filled up the contents of the cheque in dispute. The Accused is admittedly an educated person and as such there was no necessity for him to issue a signed blank cheque either to the Complainant or to her husband and as such this clearly goes to show that, his signed blank lost cheque has been misused by 17 C.C.No.26589/15 J the husband of the Complainant through his wife;
ix) The Complainant has not examined any witness on her side to prove her case, except having producing the cheque in dispute;
x) The Bank statement produced by the counsel for the Complainant at the time of arguments cannot be taken into consideration at all and the same has been filed by the Complainant only with an intention to confuse and mislead this court at the stage of final arguments;
xi) The Accused has successfully rebutted the presumptions available in favour of the Complainant under Sec.118 and 139 of the N.I.Act and as such he has prayed for the acquittal of the Accused.
30. In support of his arguments, the learned Defence Counsel has relied upon the decision of the Hon'ble Apex Court in the case of John K. Abraham V/s. Simon C. Abraham and another reported in (2014) 2 SCC 236.
31. I have heard the arguments. I have also gone through he written arguments submitted by the learned counsel representing both sides and the decisions relied 18 C.C.No.26589/15 J upon by each of them and I have also perused the record carefully.
32. Sec.138 of the Negotiable Instruments Act has been enacted to lend credibility to the financial transactions.
The main ingredients of the offence under Sec.138 of the Negotiable Instruments Act are:-
(i) Drawing up of a cheque by the Accused towards payment of an amount of money, for the discharge, in whole or in part, of any debt or any other liability;
(ii) Return of the cheque by the Bank as unpaid;
(iii) The drawer of the cheque fails to make the payment of the said amount of money within 15 days of the receipt of the notice under the proviso
(b) to Section 138.
The Explanation appended to the Section provides that, the "debt or other liability" for the purpose of this Section means a legally enforceable debt or other liability.
33. Apart from this, Sec.139 of the Negotiable Instruments Act lays down a presumption in favour of the holder of cheque in the following terms:-
"It shall be presumed, unless the contrary is proved, that:-19 C.C.No.26589/15 J
The holder of a cheque received the cheque, of the nature referred to in Sec. 138, for the discharge, in whole or in part, of any debt or other liability".
34. Also, Sec.118 of the Negotiable Instruments Act states, "Until the contrary is proved, the following presumptions shall be made:-
(a) That every Negotiable Instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration."
35. Thus, the Act clearly lays down presumptions in favour of the Complainant with regard to the issuance of the cheque by the Accused towards the discharge of his liability in favour of the Complainant.
36. Under the scheme of the Act, the onus is upon the Accused to rebut the presumptions in favour of the Complainant by raising a probable defence.
37. It is a well settled position of law that, the defence of the Accused, if in the nature of a mere denial of the case of the Complainant will not be sufficient to hold it as a probable defence. The bare denial of the passing of consideration apparently does not appear to be any defence. Something 20 C.C.No.26589/15 J which is probable must be brought on record for getting the benefit of shifting the onus of proof to the Complainant.
38. It is also a well settled position of law that, once the cheque is proved to be relating to the Account of the Accused and he accepts and admits the signature on the said cheque, then the initial presumption as contemplated under Sec. 139 of the N.I.Act has to be raised by the courts in favour of the Complainant. The presumption referred to in Sec.139 of the N.I.Act is a mandatory presumption and not a general presumption, but the Accused is entitled to rebut the said presumption. What is required to be established by the Accused in order to rebut the presumption is different from each case under given circumstance. But the fact remains that, a mere plausible explanation is not expected from the Accused and it must be more than a plausible explanation by way of rebuttal evidence. The defence raised by the Accused by way of rebuttal evidence must be probable and capable of being accepted by the court.
39. No doubt the initial mandatory statutory presumptions under Sec.118 and 139 of the N.I.Act are in favour of the Complainant. However they are rebuttable presumptions and the Accused is expected to rebut the presumptions by raising a probable defence.
21 C.C.No.26589/15 J40. Such being the legal position, it would be pertinent to refer to the defences raised by the Accused to rebut the presumptions in favour of the Complainant in this case.
41. Admittedly, there is no dispute with regard to the fact that the cheque in dispute belongs to the Accused, with his signature on it. However, there is a serious dispute with regard to the alleged existence of the loan transaction to the tune of Rs.4.5 Lakhs between the parties as claimed by the Complainant in the present case. Though the Accused has denied his acquaintance with the Complainant, subsequently he has admitted the same, during the course of his cross- examination, which would be discussed herein after.
42. It is interesting to note that, the defence of the Accused has commenced in this case by denying his alleged acquaintance with the Complainant.
43. According to the Complainant, the Accused and her husband K. Srinivas are known to each other very closely and they are working together from the last 10 to 11 years and as such the Accused has become their family friend. However during cross-examination of the Complainant, the Accused has tried to elicit from her that, she does not know the Accused at all.
44. In the line of this defence, it is elicited from the Complainant that, the Accused is working with her husband 22 C.C.No.26589/15 J since 20 years and that he is working as a Mechanic in Kamakya, Katriguppe, BMTC 13th Depot and even her husband is also working as a Mechanic in the same depot. She has further claimed that, she knew the Accused since the time of her marriage about 12 to 13 years back and he was their family friend and that she has visited his house about 2 to 3 times.
45. It is pertinent to note that, thereafter during the course of her further cross-examination, it is suggested to the Complainant that, she does not know the Accused at all and as such her claim that, she has lent amount to him is utterly false. With this suggestion put to PW.1, the Accused has tried to deny his acquaintance with the Complainant.
46. However this defence has been given complete go bye by the Accused, who in his evidence affidavit has admitted that, the husband of the Complainant K.Srinivas is working in his depot in a different unit and as such, he is known to him as a colleague, though he claims that, he is not very close to him and as such, he is not their family friend.
47. However, in his cross-examination, the learned counsel for the Complainant has elicited from the Accused that, even the husband of the Complainant was working in the 13th Depot of the BMTC in Katriguppe and that, he joined 23 C.C.No.26589/15 J his service in the year 1997 and that the husband of the Complainant also joined service along with him in the year 1997 and that since then he is known to him.
48. It could be seen that, in so far as the acquaintance between the Complainant and the Accused is concerned, during the cross-examination of the Accused, two photographs have been confronted to him, one being the photograph, which has been taken in the Birthday function of the daughter of the Complainant and the other, being the marriage photograph of the marriage of the Complainant, by looking into which, the Accused has admitted that he has participated in both the occasions as per photograph of the marriage of the Complainant which was solemnized in Dharmastala in the year 2004.
49. Moreover the Accused has also admitted the suggestion of the learned counsel for the Complainant that, he knew the Complainant along with her husband since 19 years. Thus these admissions elicited form the Accused are sufficient to come to the conclusion that, though he had tried to deny his acquaintance with the Complainant, he has not succeeded in his attempt to do so and on the other hand, with his own admissions, it is proved by the Complainant that, there is acquaintance between her and her husband and the Accused among each other since 19 years. Therefore this defence of the Accused is a highly untenable one.
24 C.C.No.26589/15 J50. Now coming to the proximity in the relationship between the parties, in the form of friendship between the husband of the Complainant and the Accused is concerned, though in his affidavit, the Accused had alleged that, the husband of the Complainant, by misusing the cheque in dispute has got filed this false case against him through his wife and he has also alleged that, the husband of the Complainant is a well known person for cheating, manipulating etc., in the Depot and as such he never used to move with him and that not only he, but the entire depot members are afraid of him, except these allegations made by the Accused against the husband of the Complainant, the same has not been proved by the Accused through some cogent and reliable evidence. As such it is clear that the Accused has made false allegations against K.Srinivas, without the same being corroborated with any cogent proof.
51. It is seen that, contrary to the aforesaid claim, during the cross-examination of the Accused, the learned counsel for the Complainant has successfully elicited from him that, the husband of the Complainant K.Srinivas had offered surety to him for his loan from the National Co- Operative Bank in the year 2004 as per the Certificate issued by the said Bank as per Ex.P12.
52. It is interesting to note that, though the Accused has not directly admitted the same, he has claimed that, he 25 C.C.No.26589/15 J as well as the husband of the Complainant had availed loans from the said bank. However, what was expected from the Accused was not his claim that, the husband of the Complainant had availed the loan. But indirectly the Accused has also admitted having availed the loans from the said bank in the year 2004.
53. He has also admitted the suggestion that, as per the Certificate at Ex.P.12 issued by the National Co-Operative Bank, Banashankari 2nd Stage Branch, Bengaluru, the husband of the Complainant has stood as a surety for the loa of the former to the tune of Rs.50,000/=. He has also admitted the suggestion that, the husband of the Complainant used to be always with him. These admissions on the part of the Accused are sufficient to come to the conclusion that he and the husband of the Complainant K.Srinivas, being close friends shared a cordial friendship between each other, since more than 20 years, both in their working places as well as in their personal lives. Though the same has been denied by the Accused, his own admissions elicited from the Accused in his cross-examination are sufficient to conclude about the said point.
54. It is further pertinent to note that, the Accused has also questioned the financial capacity of the Complainant, so as to have lent loan to the tune of Rs.4.5 Lakhs to him.
26 C.C.No.26589/15 J55. No doubt, except the cheque in dispute, there is no other document in support of the case of the Complainant in respect of the transaction in question. However there cannot be a general rule applicable to all the cases, that every loan transaction should be evidenced by either a Loan Agreement or a Pro-note and Consideration receipt or any other document in writing between the parties, since the necessity for obtaining the such security document from the borrower/s depend upon the facts and circumstances of each case and the proximity of the relationship that exists between the lender and the borrower of such loans.
56. Therefore just because there are no documents entered into between the parties as a proof of the loan transaction between them, the entire case of the Complainant cannot be doubted solely on the said ground.
57. Likewise when it comes to the financial capacity of the Complainant, so as to have arranged the funds to lend the loan to the Accused, she has been extensively cross- examined by the learned Defence Counsel.
58. In this regard, it is elicited from the Complainant that, till 2004, she was working in a Private Company and thereafter from 2005, she has started her own Detergent business in her office situated at Kadirenahalli and she claims that it is a wholesale business with a monthly 27 C.C.No.26589/15 J turnover of Rs.30,000/=. Though it is elicited from the Complainant that, she pays a monthly rent of Rs.5,000/= to the said shop and that she has not produced the rental agreement before the court and that she has not taken any agency to run the business etc., there is no serious denial of her source of funds by the Accused, so as to have enabled her to advance the loan amount to him.
59. Moreover, it is not the claim of the Complainant that, she has advanced a total loan of Rs.4.5 Lakhs to the Accused at once and according to her, she has advanced a loan of Rs.1 Lakh to the Accused in June 2013, Rs.2.5 Lakhs in December 2013 and Rs.1 Lakh in the month of October 2014. She has also admitted that, there is no document collected from the Accused by her at the time of her lending of the aforesaid loan amount to the Accused.
60. However, with regard to the source of her funds so as to have arranged the said amount, according to her, the first amount of Rs.1 Lakh was arranged by her from out of the chit amount, which she had received, but she has admitted that she cannot produce any document/s related to her chit and that she could not examine the owner of the said chit, with whom, she claims to have had subscribed for the said chit.
28 C.C.No.26589/15 J61. No doubt, the omission on the part of the Complainant to produce the document/s in this regard amounts to a doubtful circumstance in her case, but in the normal course of events, one could not expect any document/s relating to a chit transaction, except a small card or a small note book, which by itself would not be of any evidentiary value, in the absence of other corroborative proof to support the same. Therefore it is not uncommon to find such chit transaction among the ladies in the local areas.
62. Therefore only because of the reason that, there is no document produced by the Complainant in this regard in support of her claim that, she could arrange Rs.1 Lakh through her bid amount cannot be doubted by this court.
63. It is further pertinent to note that, in so far as the second amount of Rs.2.5 Lakhs is concerned, according to the Complainant, the same was given to her by her father-in- law for the purpose of her business and the third amount of Rs.1 Lakh was arranged by her from out of the amount which was in her house and some amount which was withdrawn by her from the bank.
64. No doubt the Complainant has not produced her bank Passbook to show that, she had withdrawn around Rs.60,000/= to 70,000/= from her bank account, though she 29 C.C.No.26589/15 J had claimed that, she had no impediment to produce the same.
65. Likewise when the Complainant has been questioned, as to, if she could examine her father-in-law, she has categorically answered that, she cannot do so, since he is suffering from Kidney ailment.
66. It is interesting to note that, when the Complainant has spelled out the reason with regard to the health condition of her father-in-law, there is no denial of the same by the Accused by suggesting the contrary to her. As such her claim that, her father-in-law cannot be examined for the reason of his ill-health has been admitted by the Accused.
67. Even otherwise, the examination of her father-in- law by the Complainant would not have made any difference in the case, since obviously, he would have supported the case of his daughter-in-law in the present proceedings and it could not be expected that, he would have supported the Accused. Therefore the non-examination of her father-in-law by the Complainant as well as the non-production of her Bank pass book cannot be considered to be a doubtful circumstance in the case of the Complainant.
68. Therefore it is clear that, though the Complainant has substantiated her source of funds, the same has not 30 C.C.No.26589/15 J been seriously rebutted by the Accused. Therefore the defence of the Accused with regard to the financial capacity of the Complainant has not been probabalised by him.
69. Now coming to the interesting defence of the Accused with regard to his cheque, initially in the cross- examination of the Complainant, his defence in this regard is "Cheque Lost Theory".
70. In the light of this defence, it is suggested to the Complainant by the Defence Counsel that, the Accused had lodged a complaint alleging that, he had lost his 10 cheque leaves, including the cheque in question while traveling in a bus, in respect of which the latter has pleaded ignorance.
71. In the light of this defence suggested to the Complainant, it is evident that, according to the Accused, his 10 cheque leaves, including the cheque in question was allegedly lost by him.
72. However, except the suggestion, there are no details disclosed in the cross-examination of the Complainant with regard to the date, on which, the Accused had allegedly lost his cheques and about the action that, he had allegedly taken pertaining to his lost cheques, 31 C.C.No.26589/15 J
73. Though the Accused has reiterated his defence of the alleged cheque lost theory even in his affidavit, he has come up with a claim that, he had lost his non-CTS cheque leaves with Cheque Nos.999481 to 999490, 560275004 and CTS Cheque Nos.0323312 , 032340, 560525 004, all the cheque leaves pertaining to the National Co-Operative Bank, Banashankari 2nd Stage, Bengaluru, which according to him were signed cheque leaves, with the contents in them not written and that, he had lost the same, while traveling in bus from Banashankari, Depot No.13 to Wilson Garden on 7.9.2015 at about 6.30 p.m.,
74. In this regard he claims to have lodged a complaint to his banker on 8.9.2015 along with the Stop Payment Instructions and a complaint to the Wilson Garden Police Station on 8.9.2015.
75. To corroborate this defence, D.W.1 has produced the documentary evidence as per Ex.D.1 which is an affidavit and the Acknowledgement as per Ex.D.2.
76. However in his cross-examination, it is elicited from him that, he had lost his entire cheque book and that he had not signed on all the cheque leaves that were lost and he had signed on 2 to 3 cheque leaves, in order to purchase the electric items for his house purpose.
32 C.C.No.26589/15 J77. Now when this defence of the Accused is to be considered by this court, then it should be the defence of the Accused that, the cheque in dispute that was allegedly lost along with his other cheque leaves must have been recovered by the Complainant.
78. However in this regard, when it is suggested to the Accused that the husband of the Complainant attend to his office on his two wheeler and that, he does not travel with him in the bus, the Accused has neither admitted nor denied it, instead he has pleaded ignorance to the same.
79. Therefore, in such circumstance, even if it is assumed for a moment that, the defence of the Accused with regard to the alleged "cheque lost theory" is true, then he has to convince this court, as to, how the husband of the Complainant came in possession of the cheque in dispute, which according to the former was lost, while traveling in a BMTC bus.
80. Moreover, if the husband of the Complainant really intended to misuse such blank cheques of the Accused, then he could have done so by misusing all the cheque leaves in the cheque book, which according to the Accused were lost by him, while traveling in a BMTC bus.
33 C.C.No.26589/15 J81. Likewise, in such circumstance, the husband of the Complainant also had an opportunity to fill up the subject cheque for a higher amount than the amount which is claimed under the said cheque in the present case.
82. No doubt, it is not in dispute that, the Accused is an educated person who knows to write in English and though in this regard, the answer given by the Complainant to the effect that, her husband has filled up the contents of the cheque in dispute has been seriously argued by the learned Defence Counsel on the ground that, this admission elicited from the Complainant proves the defence of the Accused, when in her cross-examination, the Complainant has claimed that, the Accused had brought the cheque in dispute as a blank cheque to their house and told her husband that, as he did not know to write in English, he asked her husband to fill up the contents of the said cheque and after her husband filled up the contents in it, he signed on it.
83. It is interesting to note that, the said explanation given by the Complainant has not at all been further denied by the Accused. Therefore though it could be observed that, there is a difference in the ink with regard to the contents of the cheque in dispute and the signature at Ex.P.1 (a), there can be no doubt or fault found with it, since the Complainant has herself has clearly admitted before this court that, the contents of the cheque in question were filled up by her 34 C.C.No.26589/15 J husband with his pen, whereas, the Accused has signed on it with his pen.
84. Therefore when there is a satisfactory explanation given by the Complainant with regard to the difference found in the ink in respect of the contents of the cheque in dispute, there is no reason for this court to find fault, in the husband of the Complainant having filled up the contents of the subject cheque.
85. Even otherwise, as per Sec.20 of the N.I.Act also, there can be no fault found in the Complainant or the person on her behalf to have filled up the contents of the said cheque. Therefore this circumstance does not render the case of the Complainant doubtful.
86. It is pertinent to note that, though the Accused has claimed in the cross-examination of the Complainant that, his cheques were lost, it is not his defence that, he had signed on the said cheques.
87. However for the first time, in his affidavit, he has claimed that, all the cheques leaves that he has refereed too in his affidavit at Para No.6 were signed by him. However contrary to the same in his cross-examination, he has claimed that, he had signed only 2 to 3 cheque leaves among 35 C.C.No.26589/15 J the cheques, that were allegedly lost by him, while traveling in a bus.
88. Therefore, if the defence of the Accused in the light of the alleged "cheque lost theory" was really true, then nothing prevented him from taking a consistent stand on the basis of the said defence.
89. Moreover, it is pertinent to note that, though the Accused has claimed that, apart from the complaint, that he had lodged before Police Station with regard to the alleged loss of his cheque leaves, he had also intimated to his bank about the loss of his cheque leaves and also given stop payment instructions with regard to his cheque leaves on 8.9.2015, admittedly as per Ex.P.2, which is the cheque returned memo, the cheque in dispute is returned as "Funds Insufficient" and not as "Payment stopped by Drawer". Therefore this defence of the Accused even with regard to the said contention suffers from contradiction thereby giving raise to serious doubt in his defence version.
90. Now coming to the another defence of the accused which he has raised mainly in the name of an advocate by name Smt.Chaithanya.
91. In this regard, during the cross-examination of the Complainant, it is suggested to her that, her husband knows 36 C.C.No.26589/15 J one Chaithanya, against whom her husband has filed a suit for recovery of money before the City Civil Court, Bengaluru in O.S.No.3989/2014 claiming a sum of Rs.4.8 Lakhs.
92. It is interesting to note that, though the Complainant has admitted that, she knows the said Chaithanya, she has answered that, she does not know about the financial transactions between her husband and the said Chaithanya and one Gangaraju, to whom her husband has alleged to have lent the loan.
93. Interestingly while cross-examining the Complainant, the Accused has raised a defence that, her husband had collected Rs.2.5 Lakhs from the former, so as to advance the loan to Chaithanya and it was taken about one month prior to the period during which, she claims to have lent the loan amount to the Accused and as such when he himself had lent Rs.2.5 Lakhs to her husband during the period 2014, the question of he seeking the loan from her, during the period does not arise at all.
94. With this defence, the Accused has tried to build up a defence that, he had the financial capacity to advance Rs.2.5 Lakhs to the husband of the Complainant, who had sought for the same from him, so as to lend the same to one Chaithanya.
37 C.C.No.26589/15 J95. However, even this defence version has been given a complete go bye by the Accused in his evidence affidavit, wherein he has claimed that, he himself had availed loan amount to the tune of Rs.1,20,000/= and Rs.1,26,000/= from the National Co-Operative Bank, Banashankari II Stage Branch, Bengaluru on 21.3.2013 and 1.12.2014 respectively for his necessities and in such circumstance, there was no necessity for him to avail any loan from the Complainant.
96. However, during the course of his further cross- examination, the Accused has alleged that, the husband of the Complainant has filed a false suit against Smt.Chaithanya T.J in O.S.No.3989/2014 for the recovery of Rs.4,50,000/= and he has also produced the relevant documentary evidence pertaining to the said suit as per Ex.D.6 to D.15 respectively.
97. It is further alleged by the Accused in this regard that the husband of the Complainant has misled and defrauded the National Co-Operative Bank in the name of the former and by collecting the cheque dated: 5.5.2015 and 12.8.2015 has filed a false suit against Smt.Chaithanya T.J in O.S.No.3989/14, as according to him, he had not at all advanced any such amount of Rs. 2.5 Lakhs to the husband of the Complainant as claimed by the latter in the said suit.
38 C.C.No.26589/15 J98. However, it is pertinent to note that, till this date, there is no action taken by the Accused against the husband of the Complainant alleging that, the latter has misused the cheques of the former which were allegedly issued to him by Smt. Chaithanya T.J.
99. But it is pertinent to note that, the entire defence of the Accused which is based upon said Chaithanya has not at all been corroborated by him in any manner so that the same could be believed by this court.
100. No doubt, Accused has examined Smt.Chaithanya T.J as a witness on his behalf in the present case as D.W.2. However, the said witness in her affidavit has deposed that, the husband of the Complainant has falsely claimed in O.S.No.3989/14 to have lent Rs.4,80,000/= to her by receiving a sum of Rs.2.5 Lakhs from the Accused herein. she has also alleged that, the husband of the Complainant has fabricated the documents of the Accused in the said case and by making false allegations and by playing fraud, he and his wife i.e., the Complainant herein have filed the present false case against the Accused.
101. However, during the cross-examination of D.W.2, it is elicited from her that, she came to know about the accusations leveled against the Accused by the Complainant in this case as per the say of the Accused after she appeared 39 C.C.No.26589/15 J in this case and that she was not personally present at the time of the Complainant advancing the loan to the Accused and she is not personally aware of the transactions between the Complainant and the Accused herein.
102. it is pertinent to note that, though D.W.2 has denied the suggestion that, she is deposing falsely at the say of the Accused, her evidence is not trustworthy, since she is the Defendant in a suit for recovery of money filed by the husband of the Complainant against her before the City Civil Court.
103. It is further pertinent to note that, though the husband of the Complainant had claimed in O.S.No.3989/14 at Ex.D.7, being his affidavit filed in lieu of his chief- examination in the said suit that, he had received Rs.2.5 Lakhs from the Accused herein, so as to lend the loan to D.W.2, the Accused has admitted in the present case that, he had availed loan from the National Co-Operative Bank in the year 2013-14 and with this admission from the Accused, it is clear that, his financial status during the year 2013 and 2014 was not sound and as such, there was necessity for him to avail the loan.
104. It is further pertinent to note that, the conduct of the Accused in admitting the receipt of the legal notice, but 40 C.C.No.26589/15 J in not having replied to the same leads to an adverse inference against him.
105. Likewise, the documentary evidence at Ex.P.10 also goes to show that, the Accused and the husband of the Complainant have undergone a Training program offered by Asian Paints Color Academy from 21.11.2012 to 22.11.2012 and though the Accused has denied the suggestion that, he also knows painting, the said documentary evidence goes to show that, the husband of the Complainant and the Accused were together. Therefore the conduct of the Accused has been proved even through the said document.
106. Further, though as per Ex.D.5, it is alleged by the Accused that, he had no knowledge with regard to the cheque bearing No.261095, which was alleged to have been issued to him by T.J.Chaithanya came to be dishonoured and this was done at the instance of the husband of the Complainant, this defence of the Accused is also not tenable, since there was no necessity for the husband of the Complainant to do so, since if he really wanted to cheat either D.W.2 or the Accused, he could have done so by presenting said cheque in his own name, instead of presenting the same in the name of the Accused.
107. No doubt, as per Ex.D.5, the Accused has relied upon the relevant entry dated: 8.9.2015 to show that, he had 41 C.C.No.26589/15 J collected the payments pertaining to his cheques, but the said cheques are not the subject matter of the present case. Therefore much before the Accused is said to have lodged the Complaint as per Ex.D.2 before the Police Station alleging the loss f his cheque leaves, the cheque in dispute was already presented by the Complainant and it was returned dishonoured as "Funds Insufficient" and the legal notice was already got issued by the Complainant to the Accused. Therefore this sequence of event goes to show that, only with an intention to deprive the Complainant of her legitimate right of recovery of her due amount under the cheque in dispute, the Accused has made all the possible efforts to defraud her, but has ultimately failed in his attempt to do so.
108. It is further pertinent to note that, though it is alleged both by the Accused as well as by D.W.2 that the husband of the Complainant has filed a false suit against D.W.2 her for the recovery of money in O.S.3989/14, the question as to if the said suit is a false one or not is pending adjudication before the competent court of law and as such no opinion can be expressed by this court in respect of said suit.
109. It is further pertinent to note that, as the Accused himself has claimed in the present case that, he had paid Rs.2.5 Lakhs to the husband of the Complainant, so as to lend the loan amount to D.W.2, in the present case, he is 42 C.C.No.26589/15 J estopped from claiming that, the husband of the Complainant has falsely claimed Rs.4.8 Lakhs from D.W.2 in the said suit.
110. Further the conduct of the Accused is also proved in the cross-examination of the Complainant wherein it is suggested to her that, her husband has lent loan to Chaithanya/D.W.2, but in his cross-examination, he has claimed that, husband of the Complainant has filed a false suit against Smt.Chaithanya. This rival stands taken by the Accused also leads to an inference that, he is not only intending to defend him in the present case, but is also trying to defend the said Chaithanya/D.W.2, who is the Defendant in O.S.No.3989/2014.
111. Lastly, it may not be out of place to mention her that D.W.2 as claimed in this case that, the husband of the Complainant has taken her cheque without her knowledge and presented the same in the name of the Accused for Rs.2.5 Lakhs and got it bounced.
112. However if this allegation was true, then there was no necessity for the husband of the Complainant to present the said cheque in the name of the Accused and get it bounced, he could have very well done the same by presenting the same in his name.
43 C.C.No.26589/15 J113. Hence for the aforesaid reasons, this defence of the Accused, which is supported by claim of D.W.2 is not sustainable. Therefore viewed from any angle, it is clear that, though the Accused has made his best possible efforts to disprove the case of the Complainant, he has failed to do so and on the contrary the Complainant has been able to successfully establish her case beyond reasonable doubt and as such the appreciation of the entire evidence on record goes to show that the Accused has failed to rebut the presumptions available in favour of the Complainant under Sec.118 and 139 of the N I Act. Accordingly, I proceed to pass the following:-
ORDER By exercising the power-conferred u/s 255(2) of Cr.P.C., the Accused is hereby convicted of the offence punishable u/s 138 of the Negotiable Instruments Act.
He is held liable to pay a fine of Rs.5,00,000/= (Rupees Five Lakhs Only). If the fine amount is so realized, Rs.4,90,000/= (Rupees Four Lakhs and Ninety Thousand Only) is ordered to be paid to the Complainant as Compensation and the balance of Rs.10,000/= (Rupees Ten Thousand only) is ordered to be adjusted towards cost to the State Exchequer.
In default of payment of such compensation, he shall undergo Simple Imprisonment for 6 (Six) Months.44 C.C.No.26589/15 J
His bail bond and surety bond
stands discharged.
Issue free copy of the Judgment to
the Accused forthwith.
(Dictated to the Stenographer and transcribed and print out taken by her, verified, corrected and then pronounced by me in the open court on this the 4th day of July, 2018).
(SARASWATHI.K.N), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Smt. Vani;
2. List of documents exhibited on behalf of the Complainant:-
Ex.P-1 : Original Cheque;
Ex.P1(a) : Signature of the Accused;
Ex.P-2 : Bank Memo;
Ex.P-3 : Office copy of the Legal Notice;
Ex.P-4 : Postal Acknowledgment;
Ex.P-5 : Returned Legal Notice;
Ex.P-6 : Postal Cover;
Ex.P.7 : Postal Receipt.
Marked through D.W.1:-
Ex.P8 and P9 : Photographs;
Ex.P10 : Certificate;
Ex.P11 : Negative of Photos;
Ex.P12 : Certificate dated 10.2.2017 issued by the
National Co-operative Bank,
Banashankari II Stage Branch,
Bengaluru;
Ex.N1 : Visiting Card of Balaji Creations.
3. List of witness/s examined on behalf of the Accused:-45 C.C.No.26589/15 J
D.W.1 : Sri.Prakash K;
4. List of documents exhibited on behalf of the Accused:-
Ex.D1 : Affidavit of the Accused dated 8.9.2015; Ex.D.2 : Endorsement issued by the Wilson Garden Police;
Ex.D.3 &D.4 : Bank Pass Books;
Ex.D.5 : Statement of Accounts;
Ex.D.6 & D.7 : Certified copies of the Plaint of
O.S.No.3989/2014 and the affidavit in
lieu of examination-in-chief of the
Plaintiff therein as per Ex.D6 and D7
respectively;
Ex.D.8 : Letter dated: 12.4.2017;
Ex.D.9 : Office Copy of the requisition letter;
Ex.D.10 : Letter dated: 18.11.2014 issued by the
National Co-Operative Bank;
Ex.D.11 : Certified copy of the On Demand Pronote
and Consideration Receipt
Ex.D.12 : Certified copy of the letter dt.18.11.2014
Ex.D.13 to 15 : Certified copies of the cheques;
(SARASWATHI.K.N), XVI ACMM, Bengaluru City.46 C.C.No.26589/15 J
4.7.2018 Judgment pronounced in the open court vide separate order.
ORDER By exercising the power-conferred u/s 255(2) of Cr.P.C., the Accused is hereby convicted of the offence punishable u/s 138 of the Negotiable Instruments Act.
He is held liable to pay a fine of Rs.5,00,000/= (Rupees Five Lakhs Only). If the fine amount is so realized, Rs.4,90,000/= (Rupees Four Lakhs and Ninety Thousand Only) is ordered to be paid to the Complainant as Compensation and the balance of Rs.10,000/= (Rupees Ten Thousand only) is ordered to be adjusted towards cost to the State Exchequer.
In default of payment of such compensation, he shall undergo Simple Imprisonment for 6 (Six) Months.
His bail bond and surety bond stands discharged.
Issue free copy of the Judgment to the Accused forthwith.
XVI ACMM, B'luru.