Bangalore District Court
Sri.Suresh Kumar Chopra vs Smt.K.Gowri on 15 April, 2017
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 15th day of April, 2017
Present: Smt. Saraswathi.K.N, B.A.L., LL.M.,
XVI Addl.C.M.M., Bengaluru City.
JUDGEMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.1893/2014
Complainant : Sri.Suresh Kumar Chopra,
S/o.Sri.Mangilalji Chopra,
Aged about 52 years,
R/at.No.6/2, 4th Cross,
Uttaradimutt Road,
Shankarpuram,
Bengaluru-04.
(Rep. by Sri.M.D.Raghunath
and ors., Adv.,)
- VS -
Accused : Smt.K.Gowri,
W/o.Sri.Ramakrishna,
Major,
Dy.Commissioner of
Commercial Taxes/Audit)
(DCCT-Audit), Suvarna
Karnataka Vanijya Terige
Bhavan, Near 60 Feet Road,
Gopal Goud Bhadavane,
Shimoga-577205
2 C.C. No.1893/2014 J
2nd Address:-
Smt.K.Gowri,
No.1796, "B" 6th Main,
9th Cross,
RPC Layout,
Vijayanagar II Stage,
Bengaluru-40.
(Rep. by Sri.R.M.Prakash.,
Adv.,)
Case instituted : 11.9.2013
Offence complained : U/s 138 of N.I. Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is Convicted
Date of order : 15.4.2017
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, the Accused approached him in need of money for the purchase of a property and other needs and requested 3 C.C. No.1893/2014 J him to help her. Accordingly at her instance, he paid a sum of Rs.4,00,000/=, which the Accused agreed to repay shortly. After his repeated requests and demands to pay back the amount, the Accused issued a cheque bearing No.328246 dated 23.7.2013 drawn on the Vijaya Bank, Sankey Road Branch, Bengaluru, for a sum of Rs.4,00,000/= towards the repayment of the said amount. When the said cheque was presented for encashment, the same came to be returned with an endorsement "Account Closed/Transferred to" on 25.7.2013, which was communicated to him on 25.7.2013.
3. The Complainant has further submitted that, he intimated the said fact to the Accused through legal notice on 29.7.2013 calling upon her to pay the amount covered under the cheque. Though the Accused has received the said legal notice sent to her under RPAD, she has not complied with the demand made in the legal notice, but has issued an untenable reply. Hence the present case.
4. The Complainant submits that, the dishonour of the cheque by the Accused has been malafide, intentional 4 C.C. No.1893/2014 J and deliberate. Feeling aggrieved by the conduct of the Accused, he has filed the present complaint praying that the Accused be summoned, tried and punished in accordance with Sec.138 of the Negotiable Instruments Act.
5. The Pre-summoning evidence has been led by the Complainant on 6.1.2014. Prima-facie case has been made out against the Accused and she has been summoned vide order dated 24.1.2014.
6. The Accused has appeared before the court on 8.12.2015, she has been enlarged on bail, the substance of the accusation has been read over to her on 12.1.2016, she has pleaded not guilty and claimed the trial.
7. In his post-summoning evidence, the Complainant has examined himself as PW1 and has filed his affidavit, wherein he has reiterated the averments made in the complaint.
P.W.1 has produced and relied upon the following documentary evidence:-
5 C.C. No.1893/2014 JEx.P1 is the cheque, in which, the signature is identified by P.W.1 as that of the Accused as per Ex.P1(a), the Bank Challan as per Ex.P2, the Bank Memo as per Ex.P3, the office copy of the Legal Notice as per Ex.P4 and the true copy of the Reply Notice as per Ex.P5, the Postal Receipts as per Ex.P6 and Ex.P7 respectively and the Postal Acknowledgement as per Ex.P8.
8. The statement of the Accused under Sec.313 of Cr.P.C., has been recorded on 6.10.2016.
9. The Accused has denied the incriminating evidence found against her and she has filed her statement of defence under Sec.313 of Cr.P.C., which is in fact signed by her counsel.
In the said Defence Statement, the Accused has claimed that, she is a responsible government servant working in the capacity of the Joint Commissioner of Commercial Taxes at Mysore at present and her husband is a well known Doctor, having his own nursing home and hospital at Bengaluru and apart from having high income from their professional career, she is also getting a rent of Rs.30,000/= per month as rent from her own residential property in Bengaluru. Therefore she, being 6 C.C. No.1893/2014 J having financially sound, the question of she availing any hand loan from the Complainant does not arise at all.
10. It is further claimed by the Accused that, her husband was running a Nursing Home at Hassan during 2002 to 2005 and she had appointed one of her relatives by name Mr.Murali, who is her nephew and also his wife to take care of the responsibilities of the said Nursing Home at Hassan and due to his mismanagement and mis-use of funds, he had been removed from his job. When the said Murali was jobless, he had requested her to arrange some funds to start his own business. Since she is a Government Employee, she refused to lend any financial help and in the meantime, the said Murali got acquainted with the Complainant, who is a financier and was lending the money on interest to many people and also running business by having his own staff and people and requested to put a word to help him financially, but she denied his request. But inspite of it, the said Murali has taken financial help from the Complainant by taking her name and influence. However the said Murali was incapable of returning the hand loan lent by the Complainant and he being her nephew, used to come her house at Bengaluru often and during her absence, the 7 C.C. No.1893/2014 J said Murali has stolen the bunch of signed blank cheques which were kept in her residence for her regular use for her personal purpose. After coming to know about the loss of her cheques, she lodged a police complaint at Vijay Nagar Police Station on 19.6.2007.
11. The Accused has further stated that consequent to these events, even without her knowledge, her nephew Murali had filed a complaint at Chikkamagalur by mis- utilizing one cheque among the other loose bunch of signed blank cheques in C.C.No.1609/2007 and in the said case she came to be acquitted by the said court. After coming to know about the said judgment Mr.Murali got desperate and to take revenge against her and to extract further money from her, he has handed over the remaining 7 to 10 signed blank cheques to the Complainant herein and requested him to file the complaint against her only for the purpose of extracting the money from her along with his other employees. Thus the said Murali by colluding with the Complainant herein has got filed the present case as well as 4 other false cases in the names of the employees of the Complainant and the said cheque numbers were also mentioned in the police complaint filed by her on 19.6.2007.
8 C.C. No.1893/2014 J12. It is further claimed by the Accused that, the Complainant is a stranger to her and she never had any personal contact or any financial transaction with him and at the time of filing of this case, she was working at Shimoga and she never had any contact with the Complainant, as she is in a responsible position in a Government Department. Thus according to her the present false case has been filed by the Complainant against her along with his employees by colluding with her nephew Murali and accordingly prayed to dismiss the complaint.
13. Final arguments were advanced at length by the learned counsels representing both the sides.
14. The learned counsel for the Complainant has prayed for the conviction of the Accused on the ground that, the cheque book which the Accused claims to have lost, according to her consisted of cheque leaves with consecutive numbers, while the cheque number of eth this case and those in the other connected matters are not consecutive numbers. The cheque in question is returned for the reason "Account Closed". The defence of the Accused in the Reply Notice and in the Statement of 9 C.C. No.1893/2014 J Defence under Sec.313 of the Cr.P.C are contradictory. It is lastly argued that, the presumption under Sec.118 r/w.Sec.139 of the N.I. Act is in favour of the Complainant and thus the Accused be convicted for the offence punishable under Sec.138 of the N.I. Act.
15. On the other hand, the learned counsel for the Accused has prayed for the acquittal of the Accused on the ground that, the Complainant has miserably failed to prove his financial capacity before this court. He has also failed to prove that, the cheque in question was issued by the Accused in his favour towards the discharge of the legally enforceable debt and therefore the Accused has successfully rebutted the presumption available in favour of the Complainant and thus prayed for the acquittal of the Accused.
16. I have considered the submissions and perused the record carefully.
17. Sec.138 of the Negotiable Instruments Act has been enacted to lend credibility to the financial transactions.
10 C.C. No.1893/2014 JThe main ingredients of the offence under Section 138 Negotiable Instruments Act are:-
(i) Drawing up of a cheque by the Accused towards the payment of the 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.
18. 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:-
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".11 C.C. No.1893/2014 J
19. 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;"
20. Thus, the Act clearly lays down the 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.
21. 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.
22. 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.
12 C.C. No.1893/2014 J23. It is pertinent to note that, in pursuance of the legal notice got issued by the Complainant the Accused herein has got issued a Reply Notice to the Complainant as per Ex.P5, in which, her defence is one of the entire denial of the entire case of the Complainant. Likewise she has further denied the alleged loan transaction as claimed by the Complainant. However according to her, as stated in para No.4 of her Reply Notice, she has already filed a complaint with regard to the alleged missing of her cheques which were issued during the year 2003-04 of the Corporation Bank, RPC Layout, Vijayanagar Branch and KG Road Branch and Vijaya Bank Sankey Road, Bengaluru in the concerned jurisdictional Police Station and she has complained that the cheques were feared to have been stolen by some miscreants and suitable action be initiated. She has further stated in her Reply Notice that, it is surprising that the stolen cheques were issued by the Bank in the year 2003 were being presented by the Complainant and him after a long gap of 10 years.
24. With this defence version, the Accused has denied the entire allegation made against her by the respective Complainants in all these cases.
13 C.C. No.1893/2014 J25. Now in the background of this defence version pleaded by the Accused in her Reply Notice, it is necessary to appreciate the cross-examination of the Accused conducted by the learned counsel for the Complainant. It is to be noted that, though there is no rebuttal evidence by the Accused by way of filing an affidavit, the learned counsel for the Complainant has cross-examined the Accused on the basis of the statement of defence filed by her counsel, while answering to the incriminating circumstances under Sec.313 of Cr.P.C., by the Accused.
26. Interestingly during her cross-examination, it is elicited from the Accused that, her address shown in the cause title of the complaint is correct and thereby she has admitted her both the addresses shown in the cause title of the compliant. Therefore when the Accused has taken up a defence that, as on the date of filing all these complaint she was in Shimogga, her defence that the claim of the Complainant about his acquaintance with her as false cannot be accepted by the court. It is elicited from DW1 that, while she was serving outside Bengaluru also, she used to visit Bengaluru during weekends and she used to say in Bengaluru only for a day.
14 C.C. No.1893/2014 J27. With regard to her acquaintance with the Complainant, though the Accused has denied about her acquaintance with the Complainant even in her cross- examination, when the defence version stated by the counsel for the Accused in the defence statement in looked into, the acquaintance between the Complainant and the Accused is admitted and at least it could be believed to the extent that, the nephew of the Accused allegedly asked her to put a word to the Complainant to lend financial assistance to him, which leads to an inference that according to the Accused herself, she knew about the Complainant through her nephew. According to the Accused, as stated in the statement of defence she refused to put in a word to the Complainant to help him financially, but she denied the request of her nephew Murali. This defence version pleaded by the Accused clearly goes to show that, in the Reply Notice as well as in her cross-examination, the Accused has denied her acquaintance with the Complainant, but in her defence statement she has admitted that she knew that the Complainant was financially sound and as such her nephew Murali asked her to put a word to the Complainant to help him financially and this defence 15 C.C. No.1893/2014 J version of the Accused would go to show that she was aware of the Complainant.
28. Interestingly the Accused has taken up another defence that her nephew Murali has misused her cheques and according to her, as per her defence statement, by misusing one among such cheques, her nephew Murali had filed C.C.No.1909/2007 before the Court at Chikkamagaluru, in which she was acquitted and he has given her 6 to 7 cheques to the Complainants of all these cases, through which the Complainant, by himself and through his other employees has falsely implicated her. In this regard, according to the Accused, as is elicited from her, the said cheques which were lost by her were obviously serial number wise and the said cheque books consisted of 10 cheque leaves. However it is pertinent to note that, the cheque in dispute of the present case and the cheque in dispute in the other contacted 4 matters are not in consecutive numbers and this fact by itself clearly go to show that, the Accused has not raised a true defence before the Court. Moreover though the Accused has claimed that, she had lodged a complaint about the loss of her cheque in the year 2007, and no doubt in C.C.No.3250/2014, she has produced 16 C.C. No.1893/2014 J the true copy of the complaint dated 19.6.2007 said to be the complaint in respect of the loss of her cheques from serial number 328241 to 328250 and 145851 to 145860 belonging to Vijaya Bank, Sarakki Raod Branch and Vijayanagar, K.G.Raod Branch, respectively and likewise the cheques bearing No.531321 to 531330 relating to her Current Account of the Corporation bank, RPC layout, Bengaluru and in the said complaint, she has alleged theft by her nephew Murali. But it is elicited from DW1 during her cross-examination by the learned counsel for the Complainant that, she not pursued the said complaint thereafter. Likewise it is elicited from DW1 that, the cheque in question pertains to her Bank account of Sarakki Road Branch and that it contains her signature. Likewise it is further elicited from DW1 that, she has not given Stop Payment Instructions to her Bank after lodging of the police complaint and she has not intimated about the same to her Bank.
29. Now in the light of the answers and admissions elicited from the mouth of DW1 by the learned counsel for the Complainant in her cross-examination, it clearly goes to show to that, the Accused who is undoubtedly a Government Officer occupying a high post in the 17 C.C. No.1893/2014 J Government service cannot be expected to keep quite that too when she alleges that her nephew had stolen her 3 cheque books. Moreover as per the own document of the Accused, she claims that her cheque books have been lost and as early as June 2007 and the cheque in dispute has been presented by the Complainant herein for encashment on 25.7.2013. In such circumstance, the Accused cannot be expected to keep quite without pursuing about her complaint without expecting that her cheque leaves might be misused by somebody, if really they have been misused by her nephew or by somebody else.
30. Even otherwise if the defence version of the Accused is presumed to be true, then nothing prevented the Accused from giving Stop Payment Instructions to her Bank by intimating about the loss of her cheque books. The Accused has not explained before the court as to why she has not done so, though she is an educated and an officer occupying a high position in the Government Service. Therefore the conduct of the Accused in not doing so leads to an adverse inference against her. Moreover it is not the defence of the Accused that, she has come to know that, her cheque leaves have been 18 C.C. No.1893/2014 J allegedly misused by her nephew recently and as per the own document of the Accused, which is the self attested copy of the judgment in C.C.No.609/2007, wherein one Murali had filed a cheque bounce case against her claiming for a sum of Rs.6,00,000/= on the basis of a cheque drawn on the SBM, Harohalli Branch, Hassan. The Accused has claimed in the present case that, the said Murali had misused one of her lost cheque leaves and had filed the said false case against her. But interestingly, the cheque in the said case did not belong to any of the account as shown in the complaint dated 19.6.2007 and even the said cheque did not belong to any of the accounts of the Accused in the Bank at Bengaluru. In such circumstance, the said defence of the Accused clearly leads to an inference that, she has come up with a totally false defence and has miserably failed to convince this court about her defence version. Even otherwise, when the Accused came to know that, she had been falsely implicated by her nephew Murali in the said case, even at that stage nothing prevented her from giving Stop Payment Instructions to her Bank in respect of the 3 cheques books, which were allegedly stolen from her husband's Nursing Home in Hassan. The Accused 19 C.C. No.1893/2014 J has not convinced this court as to why she has not done so. Therefore even on this ground, the entire defence of the Accused is liable to be seriously doubted by this court. Hence it is clear that, the Accused has miserably failed in probabilizing her defence.
31. Now coming to the evidence of the Complainant, the only point on which the entire case of the Complainant has been denied by the Accused is on the ground of his financial capacity. In this regard though the Complainant has been cross-examined extensively by the learned counsel for the Accused, nothing has been elicited from him so as to discredit or disbelieve his evidence. No doubt the Complainant has not been able to state the date and the time of the alleged loan transaction with the Accused as well as the date of the issuance of the cheque by the Accused. But just because the Complainant has not been able to recollect about the said events, they by themselves do not create doubt in the case of the Complainant, since the Accused has nowhere denied having issued the cheque in question to the Complainant. Interestingly it is suggested to the Complainant by the Defence Counsel that, the Accused has not issued any cheque to him and that, he has 20 C.C. No.1893/2014 J misused her signed blank cheque and that by misusing the same, he has filed this false case only for the purpose of making wrongful gain. Though the Complainant has not produced his Statement of Accounts to show his source of Rs.4,00,000/= in his account, the explanation given by the Complainant is that he has paid the said amount from out of his savings. Therefore except suggesting to the Complainant that his entire case is false, nothing worth is elicited from him so as to disbelieve his case. Moreover when the Complainant has denied that, by collecting the signed blank cheques of the Accused from Murali and by misusing them, he has filed this false case against the Accused, the onus of proving the said allegation is upon the Accused. But as already discussed, the Accused has not substantiated her defence with any cogent and reliable evidence before this court. No doubt, it is elicited from the Complainant of this case that, he along with his other employees has filed similar cheque bounce cases against the Accused there is no reason for the court to raise any doubt about the case of the Complainant.
21 C.C. No.1893/2014 J32. Therefore by appreciating the entire evidence amiable on record it is clear that, if at all the defence of the Accused were to be true, she would have acted like a person of ordinary prudence by taking appropriate legal action against her nephew Murali, against whom she alleges the offence of theft or even against the Complainant. Moreover even if the Accused had not pursued the matter against Murali in pursuance of the complaint dated 19.6.2007, the concerned police authorities would have definitely taken suitable action against him. But the fact that no action has been taken againt Murali either by the Accused or by the concerned police authorities clearly leads to an inference that, only with a view to escape from her liability, the Accused has created a document in the form of a complaint addressed to the Vijayanagar Police on 19.6.2007 and only by relying upon the said document, the defence of the Accused cannot be considered as probable and believable. Therefore this court has no hesitation to hold that, the Complainant has proved his case beyond reasonable doubt and on the other hand, the Accused has miserably failed to probabilize her defence.
22 C.C. No.1893/2014 J33. In support of her arguments, the learned counsel for the Accused has relied upon the following decisions:-
1. In A.Viswanath Pai Vs., Vivekananda S Bhat, reported in ILR 2009 KAR 172,
2. In Krishna Janardhan Bhat Vs., Dattatreya G.Hegde, reported in Crl.A.518/2006,
3. In Raman Finance Corporation Vs., Harmeet Singh, reported in Crl.M.A.685/2006,
4. In Syed Iqbal Vakil Vs., Javed Abdul Latif Shaik, reported in Crl.A.959/2007,
5. In Ashwini Satish Bhat Vs., Jeevan Divakar Lolienkar, reported in 29/1998,
6. In Shanthi Vs., Mary Sherly, reported in Crl.996/2011,
7. In Sanjay Mishra Vs., Kanishka Kapoor, reported in Appn No.4694/2008,
8. In M.Senguthavan Vs., Mahadevaswamy, reported in IIR 2007 KAR 2709.
34. Thus for the reasons discussed above, I proceed to pass the following: -
23 C.C. No.1893/2014 JORDER By exercising the power conferred u/s 265 of Cr.P.C., the Accused is hereby convicted for the offence punishable u/s 138 of the Negotiable Instruments Act.
She is sentenced to pay a fine of Rs.5,00,000/- (Rupees Five lakhs only) within 30 days from today and in default of payment of fine, she shall undergo simple imprisonment for 6 (six) months.
Out of the fine amount so collected Rs.4,90,000/-(Rupees Four Lakhs 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.
The bail bond and surety bond of the Accused stands cancelled.
Issue free copy of Judgment to the Accused forthwith.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her, verified, corrected and then pronounced by me in the open Court on this the 15th day of April, 2017).
(SARASWATHI.K.N), XVI Addl.CMM., Bengaluru City.
24 C.C. No.1893/2014 JANNEXURE
1. List of witnesses examined on behalf of the Complainant:
PW.1 : Sri.Suresh Kumar Chopra
2. List of documents exhibited on behalf of the Complainant:
Ex.P-1 : Original Cheque; Ex.P-1(a) : Signature of the Accused; Ex.P-2 : Bank challan; Ex.P-3 : Bank memo; Ex.P-4 & 5 : Copy of the Legal Notices; Ex.P-6 & 7 : Postal receipts; Ex.P-8 : Postal acknowledgement.
3. List of witnesses examined on behalf of the Accused:
- Nil -
4. List of documents exhibited on behalf of the Accused:-
- Nil -
(SARASWATHI.K.N), XVI ACMM, Bengaluru City.25 C.C. No.1893/2014 J
15.04.2017 Judgment pronounced in the open court vide separate order.
ORDER By exercising the power conferred u/s 265 of Cr.P.C., the Accused is hereby convicted for the offence punishable u/s 138 of the Negotiable Instruments Act.
She is sentenced to pay a fine of Rs.5,00,000/- (Rupees Five lakhs only) within 30 days from today and in default of payment of fine, she shall undergo simple imprisonment for 6 (six) months.
Out of the fine amount so collected Rs.4,90,000/-(Rupees Four Lakhs 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.
The bail bond and surety bond of the Accused stands cancelled.
26 C.C. No.1893/2014 JIssue free copy of the Judgment to the Accused forthwith XVI A.C.M.M., B'luru.