Bangalore District Court
Sri. Chitti Babu S vs M. Vasantha on 21 January, 2023
KABC0C0160342019
IN THE COURT OF XXXIII ADDL. CHIEF
METROPOLITAN MAGISTRATE, MAYO HALL UNIT,
BENGALURU
: PRESENT :
M.Vijay, BAL, LLB.
XXXIII ADDL.CHIEF METROPOLITAN MAGISTRATE,
BENGALURU.
DATED THIS THE 21ST DAY OF JANUARY, 2023.
C.C.NO.54314/2019
COMPLAINANT : Sri. Chitti Babu S.
S/o. Subbaiah
Aged about 27 years,
R/at No.1097, 12th cross,
Kamalamma road,
A. Narayanapura,
Near K.R. Puram Railway Station,
Bangalore560016
Vs.
ACCUSED : M. Vasantha
W/o. Sri. K. Ramana Reddy
R/at No.4, Adiamma Nilayam,
Hanumanthappa road, Songi layout,
Ward No.28, R.S. Palya
Kammanahalli Main Road,
Near Corporation Bank,
Bangalore560033.
2
C.C.No.54314/2019
JUDGMENT
The complainant has filed this private complaint U/s.200 of Cr.P.C., against the accused for the offence punishable U/s 138 of Negotiable Instrument Act.
2. The factual matrix of the case are as follows: The complainant averred that, accused is well known to him, as such, the accused allegedly approached him for hand loan of Rs.5,00,000/ on 10.01.2019 for discharge of debts, considering the request of the accused, he claims to have lent sum of Rs.3,00,000/ on 20.01.2019 and sum of Rs.2,00,000/ on 03.02.2019 by way of cash to the accused, on it receipt, the accused promised him to repay it within 2 months, however, the accused failed to kept up his words, but, finally on his constant demand, the accused allegedly issued a cheque bearing No.508430 dated 11.03.2019 for sum of Rs.5,00,000/ drawn on corporation Bank Bansavadi branch with request to present it after one week.
3. As per the instruction and the assurance of the accused, the complainant claims to have presented cheque for 3 C.C.No.54314/2019 encashment on 18.03.2019 through his banker, but, it came to be dishonored for "Insufficient Funds" vide memo dated 20.03.2019, same was communicated to the accused but, he did not bother to respond, accordingly, he was constrained to issue demand notice on 10.04.2019 through RPAD, but, the accused intentionally did not receive it, and also not paid the cheque amount, hence, alleged that, the accused has committed an o/p/u/s 138 of N.I Act, accordingly, prays to convict the accused in accordance with law.
4. Based on the complaint, the sworn statement affidavit, the documents etc., the court took cognizance of an offense punishable under Sec.138 of N.I. Act by following the guidelines of Apex Court issued in Indian Bank Association case and ordered to be registered a criminal case against the accused for the o/p/u/s. 138 of N.I. Act.
5. In pursuance of summons, the accused appeared through her counsel, she was enlarged on court bail, further, substance of plea was recorded, the accused pleaded not guilty and she claimed to be tried, the complainant in order to prove his case complainant got 4 C.C.No.54314/2019 examined himself as P.W.1 and placed reliance on Ex.P1 to P6. Upon closure of complainant side evidence, the court examined the accused U/s 313 of Cr.P.C, the accused denied the incriminating materials on record, got examined herself as DW1 and also examined her husband, motherinlaw and her soninla as DW2 to 4 on her side.
6. Heard both the sides, that apart, both the parties have filed their written submissions, perused the materials on record, the following points arise for my determination.
Whether the complaint proves beyond all reasonable doubt that, accused has committed an o/p/u/s 138 of Negotiable Instruments Act?"
What Order?
7. My findings to the above points are follows;
Point No1: In the Affirmative.
Point No.2: As per final order for forgoing;
REASONS 5 C.C.No.54314/2019
8. POINT No:1: The accused denied the alleged borrowal of Rs.5,00,000/ from the complainant as well as issuance of cheque bearing No.508437 dated 11.03.2019 for sum of Rs.5,00,000/ and also denied the service of demand notice, therefore, the burden is on the complainant to prove the existence of liability and alleged cheque issued by the accused towards discharge of liability claimed as well as Compliance of Sec.138(a) to
(c) of N.I Act.
9. The complainant in order to prove his case got examined himself as PW1, wherein, he reiterated the alleged advancement of loan i.e., sum of Rs.3,00,000/ on 20.01.2019 and sum of Rs.2,00,000/ on 03.02.2019 by way of cash, towards the repayment of the same, accused allegedly issued Ex.P1 cheque on 11.03.2019, but, it got bounced, accused did not claim notice caused to her and failed to pay the cheque amount, inter alia the accused subjected the PW1 for cross examination, wherein, she denied the claimed financial transaction as well as issuance of Ex.P1 cheque, however, she contended that, she borrowed Rs.50,00,000/ hand loan from the mother of the complainant, for that, she issued Ex.P1 6 C.C.No.54314/2019 signed blank cheque that has been allegedly misused by the complainant, so, the accused though denied the transaction, but, admitted the cheque relating to her as well as signature found thereon, as such, the mandatory presumption U/S118 (a) r/w 139 of N.I Act, shall be drawn infavour of the complainant that, accused has drawn Ex.P1 cheque towards legally enforcible debt or liability, in view of law settled by Hon'ble Apex Court in Rangappa V/s Mohan has held that;
"Once the cheque relates to the account of the accused and he accept and admit the signature on the said cheque, then initial presumption as contemplated under Sec.139 of N.I. Act has to be raised by the court in favour of the complainant. The presumption referred to in Sec.139 of N.I. Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption."
10. Accordingly, the initial presumption has been drawn infavour of the complainant that, complainant had 7 C.C.No.54314/2019 received Ex.P1 cheque for lawful consideration, however, it is rebuttable in nature, therefore, the onus is on the accused to rebut the presumption.
11. The learned counsel for the accused vehemently argued that, the accused had borrowed Rs.50,000/ from the complainant mother, at that time, Ex.P1 cheque was issued that has been misused by the complainant, the factum of transaction held between the accused and mother of the complainant has stated by the witnesses of the accused i.e., DW2 to 4, further, complainant failed to produce the salary slip, statement of account to show that, his financial capacity as the accused specifically denied the financial capacity of the complainant, therefore, in view of decision of Hon'ble Apex Court Basavalingappa Vs. Mudibasappa, the complainant required to be proved his financial capacity, but, failed to prove the same, as such, the transaction is doubtful, accordingly, the accused has rebutted the presumption, further, the complainant not produced any securitial document to corroborate his claim about alleged transaction.
8C.C.No.54314/2019
12. Further, the complainant though claiming to be an income tax asessee, but, not shown the alleged transaction in his ITR nor produced the ITR before the court, even though he claims to have drawing salary of Rs.1,50,000/, therefore, except producing cheque nothing has produced on record to prove the alleged financial transaction held between him and the accused, therefore, the accused has probabalised the defence by examining the witnesses that on whose presence the complainant allegedly paid the loan amount, accordingly, prays to acquit the accused, by relying upon the decisions in his written submissions i.e., Basavalingappa Vs. Mudibasappa, Veerendra Kumar Vs. Sumith, Vijay Vs. Laxman, Prakashan Vs. Surendran, Jhon K. Jhon Vs. Tom Vergies, S.S. Chouhan Vs. State and another, T. Venugopal Vs. Madan P. Sarathi, Jhon. K. Abraham Vs. Symen K. Abraham, ILR 2009 KAR 2331.
13. On the contrary, the counsel for the complainant argued that, the accused admitted cheque and signature, therefore, presumption is infavour of complainant, the transaction allegedly held in between accused and mother of the complainant not proved, therefore, defence of the 9 C.C.No.54314/2019 accused cannot be acceptable, further, the evidence of DW2 to 4 cannot be relied upon as they are family members of the accused, the complainant is software engineer drawing salary more than Rs.1,50,000/, therefore, non production of statement of account, securitial document, salary slip does not ipso facto ground, to disbelieve the financial transaction, that apart, non disclosing the alleged advancement of loan in ITR in not fatal to the case of the complainant as it is paid to accused who is the relative of the complainant, as such the accused failed to rebut the presumption, accordingly, prays to convict the accused in accordance with law.
14. Considering rival contentions with the materials on record, it clearly transpires that, the accused mainly denied her financial transaction with the complainant, however, she does not dispute Ex.P1 cheque relates to her account, but, she specifically contended that, she borrowed Rs.50,000/ from the mother of the complainant, for that, she issued Ex.P1 cheque as a surety, however, to substantiate it not at all produced any document, but, she examined her mother in law, husband 10 C.C.No.54314/2019 and her relative one Guruvareddy on her side, to substantiate her defence.
15. The DW2 is motherinlaw of the accused, she deposed that, complainant and parents of complainant came to her house and demanded the accused to pay back alleged Rs.50,000/ paid to her daughterinlaw, likewise, DW4 husband of the accused deposed in support of the accused that, his wife borrowed Rs.50,000/, in this regard, accused issued cheque to the complainant due to sum differences with respect to said transaction, accordingly, complainant had lodged complaint to Banasavadi Police, in pursuance of it, Police enquired his wife as well as mother of the complainant, there the mother of the complainant claimed the cheque in question was issued to her by the accused for surety, knowing the same, Police have advised both the parties to resolve to dispute in the court itself, thereafter, by misusing the said cheque the complainant has presented cheque for encashment and filed this false case.
16. However, to substantiate the same, nothing has produced by the DW4 to show that, mother of the 11 C.C.No.54314/2019 complainant showed the cheque in question, despite the PW1 denied the enquiry of his mother by the Police, and her statement given before the Police, so except oral say nothing has produced to show that, the transaction held in between mother of the complainant and the accused, so, the evidence of DW2 being motherinlaw of accused and DW4 husband of the accused cannot be relied upon without any documents with regard to transaction between the complain and the accused, since, they are admittedly close relatives of accused and any amount oral evidence, does not prove their contention with out any corroborative material.
17. Further, the accused, examined her relative one Guruvareddy who is said to be present at the time of alleged transaction held in between the accused and the complainant, as DW3, he too deposed in support of the accused that, accused is his aunt, he came to know the filing of this case from DW4 that, complainant has claimed in his presence the accused received Rs.5,00,000/ at the house of complainant, but, he denied his presence, so, he too deposed infavour of accused and denied his presence at the time of alleged transaction had 12 C.C.No.54314/2019 taken place, however, he admitted that, accused is his relative.
18. As such, though DW3 has given oral evidence with regard to his alleged presence the time of transaction, but, his evidence does not helpful to the defence of the accused, with regard to transaction held in between accused and the mother of the complainant, so, the entire oral evidence of Ex.D2 to 4 is with regard to transaction held in between the complainant and mother of the complainant and complaint lodged against the accused before Banasawadi Police, but, except there oral say neither the witnesses nor the accused produced any document to show that, the mother of the complainant admitted the alleged transaction held in between accused and her for sum of Rs.50,000/ and collection of Ex.P1 cheque by the complainant mother for security, therefore, the evidence of DW2 to 4 are not trust worthy to believe.
19. Further, the accused got examined herself as DW1, wherein, she reiterated her defence that, she borrowed Rs.50,000/ from the mother of the complainant Smt.Venkatasubbamma for interest at the rate of 4% p.a, 13 C.C.No.54314/2019 with out the knowledge of her husband for her personal expenses, at that time, she issued Ex.P1 cheque infavour of mother of the complainant in the month of January 2019, after one month, said Smt.Venkatasubbamma demanded to repay it, by informing to her husband, in this regard, she approached Banasawadi Police, there the Police came to know that, the transaction held in between her and the Smt.Venkatasubbamma, but, meantime the complainant by misusing her security cheque filed this false case and she does not have any financial transaction with the complainant herein, however, she failed to produce document to substantiate her defence that, she borrowed Rs.50,000/ and issued Ex.P1 cheque to the complainant mother, even, the statement of the complainant or mother of the complainant given before the Police with regard to enquiry held at Banasawadi Police station, on the complaint filed by the complainant before the Police, therefore, except her oral say, nothing has produced to prove the financial transaction held in between her and one Smt.Venkatasubbamma.
20. Further, the learned counsel for the accused vehemently argued that, the complainant has failed to 14 C.C.No.54314/2019 produce the statement of account, IT returns, despite of the accused challenged his financial capability, therefore, except the cheque the complainant has not produced any corroborative documents to prove the alleged financial transaction, as such, in view of decisions of Hon'ble Apex Court i.e., Basavalingappa Vs. Mudibasappa, Jhon K.Abrham Vs. Jhon Vergies, the complainant required to prove that, he had sum of Rs.5,00,000/ as on the date of advancement of loan and merely because admission of cheque and signature on the cheque accused cannot be convicted.
21. On the contrary, the counsel for the complainant argued that, the accused is admittedly relative of complainant, hence, on that close relationship the complainant did not collect any securitial document, therefore, on that count the case of the complainant can not be doubted, further, non production of statement of account as well as ITR not at all fatal, since, the accused must prove how her cheque how her cheque gone into the hands of complainant.
15C.C.No.54314/2019
22. Considering the rival contentions, the court meticulously examined the materials on record, it clearly transpires that, the accused specifically claimed that, complainant is stranger to her, however, the complainant claimed that, accused is his relative, the witnesses DW1 to 4 not at all disputed the relationship claimed by the complainant, when such being the case insisting for corroborative document for proof of financial transaction does not warrant, therefore, non collection of corroborative document is not fatal to the case of the complainant, further, the accused vehemently contended that, complainant failed to produced statement of account as well as ITR for proof of his financial capability, despite of denial, however, on careful scrutiny of PW1 evidence, the accused though posed several questions with regard to occupation/avocation, salary, whether he has shown the alleged advancement of loan in ITR, but, the accused not at all denied the profession of complainant and also it is not the case of the accused that, complainant is not drawing salary Rs.1,50,000/ p.m., in absence of specific denial about avocation, the financial capacity of the complainant cannot be doubted.
16C.C.No.54314/2019
23. Further, it is not the case of the accused that, complainant himself is in debt to others, therefore, the question of financial capacity arises only if the accused proved that, complainant is not earning member, therefore, it is crystal clear that, complainant is an earning man, as such, the decision relied by the accused i.e., Basavalingappa Vs. Mudibasappa is not applicable to the case in hand, as the fact and circumstances in those cases are different than the case in hand, because in first decision the complainant himself had availed loan from the bank, therefore, on that count the accused was acquitted in the case.
24. Further, the accused taken his specific contention that, the complainant not produced ITR though he is an income tax asessee, admittedly, not shown the alleged advancement of loan, therefore, the present transaction did not exist, however, on careful scrutiny of PW1 evidence, it clearly reveals that, the accused just questioned, whether the complainant is an income tax asessee and disclosed the present transaction in his ITR except that, nothing has brought out on record that, had he required to be disclose the present transaction, nature 17 C.C.No.54314/2019 of transaction requires into disclose in ITR etc., since, it is very much in necessary, in view of decision of Honb'le High Court of Karnataka i.e., Yogesh Poojari V/s K.Shankar Bhatt has relied that;
"mere making a suggestion to the complainant that, he he has not disclosed the alleged loan transaction in his income tax returns or eliciting the statement from the complainant that, he has not disclosed the alleged loan transaction in his income tax returns by itself is not sufficient, it is also required for the accused to establish that the complainant is an income tax assesse required to be an assesse and that the nature of his income tax assessment and the income tax returns which he filed, requires him to discloses the alleged transaction or the liability in question in the absence of eliciting those details, by merely making a suggestion that, In the absence of eliciting those details. By merely making a suggestion that the alleged debt or liability. Has not been reflected in the income tax returns would not by itself suffice to draw an adverse inference and to hold that there was no legally enforceable debt or the presumption standing in favour of the complainant and as successful rebutted by the accused".18
C.C.No.54314/2019 Therefore, mere non disclosure of in ITR and non production of ITR is not fatal to the case of the complainant, as such, I do not found legal force in the argument of the accused.
25. That apart, the accused highlighted the doubtful circumstances with regard to a financial transaction that, accused is a house wife, her husband DW4 is drawing hand full of salary, the payslip produced to that effect along with ITR, therefore, at no point at time, she was need of money, further, the PW1 claims that, accused borrowed loan from him, for to pay college fee as well as for marriage of her daughter, but, her daughter was not all a marriage aged girl during that point of time, and she secured already job, therefore, the evidence PW1 is doubtful in nature, accordingly, accused has probabalised her defence that, debt claimed by the complainant did not exist, but, very defence of borrowal of Rs.50,000/ from the complainant mother is crystal clear that, the accused badly need of money.
26. Further, in her evidence, she claimed that, she borrowed Rs.50,000/ from the complainant mother 19 C.C.No.54314/2019 without the knowledge of her husband, and it is not her case that, she repaid sum of Rs.50,000/, even after, the alleged transaction held in between her and mother of complainant came to the knowledge of her husband who drawing salary more than Rs.1,00,000/, therefore, the claimed circumstances are not at all doubtful above transaction, therefore, which are not all disprove the existence of liability.
27. Further, the accused denied the service of legal notice, on the ground that, she shifted her rented house in the month of February 2019 from R.S. Palya to Whitefield and her motherinlaw stays in 2nd floor, hence, she did not receive the legal notice, but, it is not her case that, the legal notice Ex.P5 sent to incorrect and wrong address or the address shown in Ex.P5 is not her last known address, most significantly the court summons issued to very same address was returned with a shara "left" and meanwhile accused voluntarily appeared before the court, therefore, the complainant has proved that the legal notice sent correct address, further, the address stated in cause title as well as in affidavit of the accused are one and the same, therefore, though the Ex.P5 returned with a shara 20 C.C.No.54314/2019 "door lock" it is deemed to have been served in view of Sec.27 of general clauses Act, ass it is sent to correct and proper address of the accused however, it is rebuttable presumption, but, the accused nothing has brought out on record that, the address in legal notice as well as cause tittle are not her correct and proper address, hence, the service demand notice cannot be doubted.
28. Considering the entire materials on record, the accused though denies the alleged financial transaction, but, admitted that, Ex.P1 cheque is belongs to her, however, she contended it was issued to the complainant mother for security while borrowing the loan of Rs.50,000/ but, nothing has produced to prove her contention that, she had financial transaction with the mother of complainant Venkatasubbamma except oral say of her family members who are interested witnesses, so, the accused failed to prove her prime defence that, she had financial transaction with mother of the complainant, instead of proving the same, the accused questioned the financial capacity of the complainant as well as non production of ITR, statement of account, but, does not 21 C.C.No.54314/2019 disputed that, the complainant is earning man working in a software company.
29. That apart, it is not the case of the accused that, the complainant is in capable to lend huge sum i.e., the complainant is not a earning man or he himself is in debts to others, therefore, the contention of financial in capability and non production of documents like statement of account, ITR are not fatal to the case of the complainant, since, the accused not disputed the earnings of the complainant, as well as his avocation, therefore, the accused failed to brought out the probable material on record to prove her defence that, she had transacted with mother of the complainant, but not with the complainant, in view of failure the initial presumption drawn infavour of the complainant not been rebutted that, the cheque in question was issued to the mother of the complainant but not the complainant, accordingly, the complainant has successfully proved the existence of debt i.e., borrowal of Rs.5,00,00/ from the complainant as well as issuance of Ex.P1 cheque in his favour by the accused towards discharge of legally enforceable debt, therefore, the accused who failed to pay the cheque amount even after 22 C.C.No.54314/2019 service of legal notice, he is found guilty of o/p/u/s 138 of N.I. Act.
30. So, far as sentence and compensation is concern, an o/p/u/s.138 of N.I. Act, is a civil wrong and compensatory in nature, punitive is secondary, considering, the above settled principal of law with facts and circumstances of the case, which clearly reveals that, complainant and accused relatives and not advanced the loan for an interest, as such, it is nothing but interest free loan, therefore considering the nature of transaction, duration of pendency, litigation expenses, I am opinion that, if sentence of fine of Rs.5,75,000/ is imposed that would meet the ends of justice, accordingly, the accused is hereby sentenced to pay a fine of Rs.5,75,000/, out of that, the complainant is entitled for sum of Rs.5,70,000/, as a compensation as per Sec.357(1) of Cr.P.C., remaining amount of Rs.5,000/, is to be appropriated to the state, in case of default, the accused shall under go simple imprisonment for a period of 6 months. Accordingly, I answered the above point in "Affirmative".
23C.C.No.54314/2019
31. Point No.2: In view of above finding to Point No.1, I proceed to pass following;
ORDER Acting under section 255(2) of Criminal Procedure Code, the accused is convicted for an offence punishable U/s 138 of Negotiable Instrument Act.
The accused is sentenced to pay a fine of Rs.5,75,000/, (Rupees Five lakh seventy five thousand only) in default, the accused shall undergo simple imprisonment for a period of six months. Out of the fine amount received, Rs.5,000/, is to be appropriated to the State and by way of compensation as per the provision u/Sec.357(1) of Cr.P.C., the complainant is entitled for Rs.5,70,000/.
24C.C.No.54314/2019 The bail bond and surety bond of the accused shall stand cancelled.
Office is directed to furnish a free copy of the judgment to the accused.
(Dictated to the Stenographer transcribed and typed by her, corrected, signed and then pronounced by me in the open court, on this the 21st day of January, 2023) (M.Vijay), XXXIII ACMM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : Sri. Chitti Babu S.
2. Documents marked on behalf of complainant:
Ex.P.1 : Original Cheques
Ex.P.1(a) : Signature of the accused
Ex.P.2 : Bank return memo
Ex.P.3 : Office copy of the legal notice
Ex.P.4 : Postal receipt
Ex.P.5 : Returned postal cover
Ex.P.5(a) : Returned postal cover opened in the
open court and notice therein marked
3. Witnesses examined on behalf of Accused:
NIL 25 C.C.No.54314/2019
4. Documents marked on behalf of Accused:
NIL (M.Vijay), XXXIII ACMM, BENGALURU.