Bangalore District Court
Smt.Mamta Manjunath vs Mrs. Kavya on 6 May, 2025
KABC030170982019
IN THE COURT OF THE XV ADDL. CHIEF JUDICIAL
MAGISTRATE, AT BANGALORE
Dated this the 6th day of May, 2025
PRESENT:Smt. Namrata Rao.K.S
B.A.L, L.L.B., M.B.L.,
XV ACJM,.
BENGALURU.
C.C.No.5682 of 2019
Complainant : Smt. Mamta Manjunath
Aged about 50 years,
R/at No.204A,
Viva Hall Mark Society,
Bavdhan,
Pune-411021.
(By Sri. S. Mahesh, Advocate)
V/s
Accused : Mrs. Kavya. S
Aged about 35 years,
W /o Alok Govindaraju
Parashuram Pura,
At No.483, 2nd Floor, 11th cross,
Sadashivanagar,
Bangalore-560 080.
(By Sri. D. Kodhandra Rama,
Advocate )
2
C.C.No.5682/2019
1. Cognizance taken on 07.03.2019
2. Plea recorded on 16.12.2019
3. Offence alleged U/Sec.138 of N.I Act
4. Evidence Commenced on 07.03.2019
5. Evidence closed on 20.07.2024
6. Judgment Pronounced 6th Day of May, 2025
on
7. Final Order Accused is convicted
XV ACJM, Bengaluru.
JUDGMENT
This case has arisen as a result of the complainant filing this complaint against the accused under Section 138 of the Negotiable Instruments Act.
2. The relevant facts required to adjudicate this case are as follows:
The accused is the niece of the former husband of the complainant and therefore the 3 C.C.No.5682/2019 complainant is acquainted with the accused since 25 years. The complainant resided in Pune and was into her business in fashion designing. She separated from her husband and she was awarded with permanent alimony. Quite naturally the accused was aware of the permanent alimony received by the complainant. She and her husband went to the complainant and requested for an amount of Rs.35,00,000/- citing huge financial loss which would end her family. As the accused promised to return the money very soon and she would also pay some interest at the rate inflicted by the bank. Therefore, the complainant gave an amount of Rs.15 lakhs to the accused through RTGS. Despite sufficient time, the accused did not repay the amount and therefore upon insistence the accused issued the cheque bearing No.173137 dated 10.10.2018 for an amount of Rs.15 lakhs 4 C.C.No.5682/2019 drawn on IDBI Bank, Dollars colony, Ashwathnagar branch, Banglore.
3. Upon presentation of the said cheque for encashment, it was dishonoured for 'Payment stopped by the drawer". The same was informed by the complainant and the accused requested the complainant to represent the cheque. When the complainant again presented the said cheque for encashment. Once again the same was dishonoured but now for the reason "drawer's signature differs". Legal notice dated 21.01.2019 was issued. Even after the expiry of statutory period, the accused did not repay the amount. Therefore, invariably this complaint was filed.
4. On presentation of the complaint, the cognizance for the offence was taken. Pursuant to 5 C.C.No.5682/2019 the issuance of the summons, the accused made appearance before this court and the accused is on bail throughout the trial.
5. On compliance of Section 207 of Cr.P.C, the plea was recorded. The accused pleaded not guilty, claimed defense.
6. The Complainant has examined himself as PW.1 and the documents Ex.P1 to Ex.P10 are marked. The statement of the accused u/S 313 statement was recorded. The accused himself examined as DW.1 but no documents are marked on her behalf.
7. I have given a careful consideration to the arguments canvassed by the counsel for both sides. I have carefully perused the records. 6
C.C.No.5682/2019
8. In view of the materials placed on record, The following points arise for my consideration:
1. Is there a legally recoverable debt?
2. Whether the complainant proves that the accused has committed the offence punishable under section 138 of N.I.Act?
3. What Order?
9. My findings for the above points are:
Point No.1 : In the Affirmative Point No.2: In the Affirmative Point No.3: As per the final order for the following REASONS
10. POINT No.1: It is the testimony of PW.1 that the accused is the niece of her former 7 C.C.No.5682/2019 husband, Manjunath. This relationship is not disputed. Therefore consequently the acquaintance is also not disputed.
11. PW.1 further testifies that she is a resident of Pune and is into the business of fashion designing. The accused does not dispute this fact. PW.1 further testifies that she separated from her husband Manjunath and she was awarded with permanent alimony. The accused being the relative of the husband of the complainant naturally came to know about this award. This aspect of separation and the award permanent alimony is also not disputed by the accused.
12. Pw.1 further testifies that the accused and her husband came to the complainant and narrated that they have suffered huge financial loss and this loss would end from finally. Therefore 8 C.C.No.5682/2019 they sought for a loan of Rs.35 lakhs from the complainant. Upon the promise of the accused and her husband that they would return the money very soon, the accused was advanced with a loan of Rs.15 lakhs through RTGS. In order to substantiate the passing of the loan amount, the complainant has produced the statement of account dated 02.01.2017 maintained at Tumkur Grain Merchant Bank Limited, Tumkur marked at Ex.P7. I have gone through Ex.P7. Ex.P7 reflects that an amount of Rs.15,00,000/- was transferred to the account of the accused. That apart the accused does not dispute the transfer of the amount of Rs.15 lakhs. What she disputes is that this amount of Rs.15 lakhs was not the loan amount but was an investment made by the complainant for starting a Boutique business jointly by the accused and the complainant in 9 C.C.No.5682/2019 Bangalore.
13. I have gone through the cross examination of PW1 carefully. Series of questions have been put to PW.1 regarding the purpose for which this 15 lakhs was remitted from her account and transferred into the account of the accused. The relevant portion of the cross examination is at page-11, para-6, line- 3 runs as under:
" ನನ್ನ ಮತ್ತು ಆರೋಪಿಯ ನಡುವೆ ಬೋಟಿಕ್ ಬುಸಿನೆಸ್ ಮಾಡುವ ಸಂಬಂಧ ಮಾತುಕತೆ ಆಗಿದ್ದು ಅದಕ್ಕೆ ಸಂಬಂಧಿಸಿದಂತೆ ನಾನು ಹಣ ನೀಡಿರುತ್ತೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ."
" ಸದರಿ ವ್ಯವಹಾರ ಸರಿಯಾಗಿ ನಡೆಯದ ಕಾರಣ ಹಣವನ್ನು ಕಂತುಗಳಲ್ಲಿ ವಾಪಸ್ಸು ಮಾಡುತ್ತೇನೆ ಎಂದು ಹೇಳಿದ್ದರು ಎಂದರೆ ಸರಿಯಲ್ಲ"
Whatever the purpose for which the amount was transferred, it is not in dispute that an amount 10 C.C.No.5682/2019 of Rs.15 lakhs has come to the account of the accused from that of the complainant. In the result the accused admits the receipt of Rs.15 lakhs.
14. The Ex.p1 cheque and the signature therein is not disputed. The relevant portion of the cross examination is at Para-14 of the cross examination of DW.1.
"ನಿಪಿ.1ರಲ್ಲಿರುವ ಸಹಿ ನನ್ನದಾಗಿರುತ್ತದೆ ಎಂದರೆ ಸರಿ. ನಿಪಿ.1ನ್ನು ನಾನು ಪಿರ್ಯದಿಗೆ ನೀಡಿರುತ್ತೇನೆ ಎಂದರೆ ಸರಿ. ಸಾಕ್ಷಿ ಮುಂದುವರಿದು ಖಾಲಿ ಸಹಿ ಮಾಡಿದ ಚೆಕ್ಕನ್ನು ನೀಡಿದ್ದೇನು ಎಂದು ಹೇಳುವರು. ನಾನು ಚೆಕ್ಕನ್ನು ಸಂಪೂರ್ಣವಾಗಿ ಭರ್ತಿ ಮಾಡಿ ನೀಡಿರುತ್ತೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ ."
Therefore invariably a presumption arises under sec.139 of the N.I Act. At this juncture I rely upon the decision of the Hon'ble Apex Court in Rangappa V/s Mohan reported in 2010(11) 11 C.C.No.5682/2019 SCC 441. It is held that once the cheque relates to the account of accused and he accepts and admits the signature on said cheque, then the initial presumption as contemplated under Sec.139 of N.I.Act has to be raised by the court in favour of the complainant.
15. The defence raised by the accused are as under:-
1. The accused had issued the blank signed cheque and it was forcefully obtained by the complainant.
2. The accused has repaid an amount of Rs.5,35,000/- to the complainant out of Rs.15 lakhs and she is due only to an amount of Rs.9,65,000/-. This complaint filed for an amount of Rs.15 lakh based on Ex.P1 is therefore not maintainable.12
C.C.No.5682/2019 Blank Signed Cheque:-
16. The Hon'ble Apex Court in in Sripathi Singh Vs State of Jharkhand reported in 2021 SCC Online SC 1002 at para 17 has held as under:
"17.When a cheque is issued and is treated as 'security' towards repayment of an amount with a time period being stipulated for repayment, all that it ensures is that such cheque which is issued as 'security' cannot be presented prior to the loan or the installment maturing for repayment towards which such cheque is issued as security. Further, the borrower would have the option of repaying the loan amount or such financial liability in any other form and in that manner if the amount of loan due 13 C.C.No.5682/2019 and payable has been discharged within the agreed period, the cheque issued as security cannot thereafter be presented. Therefore, the prior discharge of the loan or there being an altered situation due to which there would be understanding between the parties is a sine qua non to not present the cheque which was issued as security."
17. Further in Oriental Bank of Commerce V/s Prabod Kumar Thivari in Criminal Appeal No 1260 of 2022 (Arising out of SLP (Crl) No 9836 of 2019) dated 16.08.2022 has held as under:
"14. In Bir Singh v. Mukesh Kumar, after discussing the settled line of precedent of this Court on this issue, a two-Judge Bench held:
33. A meaningful reading of the provisions of the Negotiable Instruments Act including, in 14 C.C.No.5682/2019 particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted.
34. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.
[...]
36. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque 15 C.C.No.5682/2019 was not issued in discharge of a debt."
The above view was recently reiterated by a three-Judge Bench of this Court in Kalamani Tex v. P. Balasubramanian.
15. A drawer who signs a cheque and hands it over to the payee, is presumed to be liable unless the drawer adduces evidence to rebut the presumption that the cheque has been issued towards payment of a debt or in discharge of a liability. The presumption arises under Section
139."
18. What can be understood from these two decisions is this. The accused cannot escape from the clutches of the liability by simply taking up the contention that he had issued a blank signed cheque. An user of the negotiable instruments will be well acquainted with the effects of issuing a blank signed cheque and the potential to misuse it. Even after having the knowledge if he issues a blank signed cheque it inclines this court to infer 16 C.C.No.5682/2019 that with all acceptance of taking the risk, he has issued the cheque. Therefore the contention of the accused that he had issued a blank signed cheque alone cannot make him free from the liability under section 138 of the NI Act.
19. It is the defence of the accused that she had given a blank signed cheque to the accused and the rest has been filled up by the complainant. This line of defence is reflected not only in her cross examination of PW.1 but also at the time of her examination-in-chief. I have gone through the entire records once again carefully. It is not in dispute that the accused has not replied to the legal notice marked at Ex.P4. At the first instance, when the accused appeared before this court and was read over the substance of accusation she has answered it in simple denial. At the time of cross 17 C.C.No.5682/2019 examination of PW.1, the accused took up the stand that the cheque was forcefully obtained by the complainant. The relevant portion of the cross examination is at para-13, line-3 :
"ಆರೋಪಿ ನಾನು 15 ಲಕ್ಷ ರೂಗಳನ್ನು ಅವರಿಗೆ ವರ್ಗಾವಣೆ ಮಾಡಿದ ನಂತರ ಪ್ರತೀ ತಿಂಗಳು ನನ್ನ ಖಾತೆಗೆ ಹಣ ಸಂದಾಯ ಮಾಡಿರುವುದರಿಂದ ಅದು 15 ಲಕ್ಷ ಮರು ಪಾವತಿ ಮಾಡುವುದಕೋಸ್ಕರ ವರ್ಗಾವಣೆ ಮಾಡಿದ ಹಣ ಎಂದರೆ ಸರಿಯಲ್ಲ. ಆರೋಪಿ 50000 ದಿಂದ 100000 ರೂ ಮಾತ್ರ ಹಣ ಕೊಡುವುದು ಬಾಕಿ ಉಳಿದಿದ್ದು ಅವರಿಂದ ಒತ್ತಾಯ ಪೂರ್ವಕವಾಗಿ ಖಾಲಿ ಸಹಿ ಮಾಡಿದ ಚೆಕ್ಕನ್ನು ಪಡೆದಿರುತ್ತೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ ."
20. During the course of cross-examination a question is also put that the accused had issued a blank cheque and the complainant has forged the signature of the accused and has also filled the rest writings in the cheque. The relevant portion of the cross examination is at para-13, line-9: 18
C.C.No.5682/2019 "ಆರೋಪಿ ಹಣ ಮರುಪಾವತಿ ಮಾಡಿದ ನಂತರ ಅವರು ನೀಡಿದ ಚೆಕ್ಕುಗಳನ್ನು ನಾನೇ ಭರ್ತಿ ಮಾಡಿ ಸಹಿಯನ್ನು ಸುಳ್ಳು ಸೃಷ್ಟಿ ಮಾಡಿ ಅಕ್ರಮ ಲಾಭ ಪಡೆದುಕೊಳ್ಳುವ ಉದ್ದೇಶದಿಂದ ಸುಳ್ಳು ಪ್ರಕರಣ ದಾಖಲಿಸಿರುತ್ತೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ ."
21. Further at the later period of cross examination the stand of the accused is that forcefully the cheque of the accused and her husband were taken and the cheques were filled up by the complainant for unlawful gain. The relevant portion of the cross examination is at page-15 , para-2 :
"ನಾನು ನೀಡಿದ 15 ಲಕ್ಷ ಹಣದಲ್ಲಿ ಹೆಚ್ಚಿನ ಭಾಗ ಆರೋಪಿ ಮರು ಪಾವತಿ ಮಾಡಿದ್ಕು ಸ್ವಲ್ಪ ಹಣ ಕೊಡುವುದು ಮಾತ್ರ ಬಾಕಿ ಇದ್ದು ಅದರ ಸಂಬಂಧ ಜುಲೈ 2018 ರಲ್ಲಿ ಒತ್ತಾಯಪುಾರ್ವಕವಾಗಿ ಆರೋಪಿಯ ಹಾಗೂ ಅವರ ಗಂಡನ ಖಾಲಿ ಚೆಕ್ಕುಗಳನ್ನು ಪಡೆದಿರುತ್ತೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ. ಚೆಕ್ಕಿನಲ್ಲಿರುವ ಸಂಗತಿಗಳನ್ನು ನಾನೇ ಭರ್ತಿ ಮಾಡಿರುತ್ತೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ.19
C.C.No.5682/2019 ನಾನು ಅಕ್ರಮ ಲಾಭ ಪಡೆಯುವ ಉದ್ದೇಶದಿಂದ ಆರೋಪಿಯ ಮೇಲೆ ಸುಳ್ಳು ಪ್ರಕರಣ ದಾಖಲಿಸಿರುತ್ತೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ ."
22. During the statement u/sec.313 of the Cr.P.C for the question No.3 it is answered that the cheque was given for the purpose of security.
ಪ್ರಶ್ನೆ No.3: ಫಿ.ಸಾ-1 ಮುಂದುವರಿದು ಸಾಲವನ್ನು ತೀರಿಸುವ ಸಲುವಾಗಿ ನೀವು ಐಡಿಬಿಐ ಬ್ಯಾಂಕ್, ಅಶ್ವತನಗರ ಶಾಖೆ ದಿ.10.10.2018 ಚೆಕ್ ನಂ.173137 ವನ್ನು ಪಿರ್ಯಾದಿಗೆ ಕೊಟ್ಟೀದ್ದೀರಿ ಎಂದು ಅವರು ಸಾಕ್ಷಿ ಹೇಳುತ್ತಾರೆ. ಇದಕ್ಕೆ ತಮ್ಮ ಉತ್ತರವೇನು?
ಉತ್ತರಃ ಹೌದು. ಆದರೆ ಸದರಿ ಚೆಕ್ಕನ್ನು ಭದ್ರತೆಗಾಗಿ ನೀಡಿದ್ದೆ. ಅದಲ್ಲದೆ ನನ್ನ ಗಂಡನಿಗೆ ಗೊತ್ತಿಲ್ಲದ ಅದರ ಒಂದು ಚೆಕ್ಕನ್ನು ನೀಡಿದ್ದೆ".
23. During her examination-in-chief she testifies that she had given a blank signed cheque to the complainant. The relevant portion of the examination-in-chief is at para-1, Line-18 : 20
C.C.No.5682/2019 " ಆಗ ನಾನು ಅವರಿಗೆ ಒಂದು ಖಾಲಿ ಸಹಿ ಮಾಡಿದ ಚೆಕ್ಕನ್ನು ನೀಡಿರುತ್ತೇನೆ. ಪಿರ್ಯಾದಿಯವರು ನನ್ನ ಒಂದು ಚೆಕ್ಕು ಮಾತ್ರ ಸಾಕಾಗುವುದಿಲ್ಲ. ಗಂಡನ ಚೆಕ್ಕನ್ನು ಸಹ ಕೊಡು ಎಂದು ಕೇಳಿರುತ್ತಾರೆ ."
24. During the course of cross examination at Para-2 when questioned that she has issued the cheque in discharge of the legally recoverable debt her answer is that she has not recieved any loan from the complainant as the complainant had asked for a cheque she had given it. The relevant portion is at para-2:
"ದೂರುದಾರರಿಗೆ ಬಾಕಿ ನೀಡಬೇಕಾದ ರೂ.15 ಲಕ್ಷ ಸಾಲದ ಬಾಬ್ತು ನಿಪಿ.1 ನ್ನು ನೀಡಿದ್ದೇನೆ ಎಂದರೆ ನಾನು ಯಾವುದೇ ಸಾಲ ತೆಗೆದುಕೊಂಡಿರಲಿಲ್ಲ, ಅವರು ಚೆಕ್ಕು ಕೇಳಿದ್ದರು ನಾನು ನೀಡಿದ್ದೇನೆ ."
25. By going through the statement of the accused at different period of trial, what can be 21 C.C.No.5682/2019 deduced is this. The accused has been inconsistent with her defence. At once she says that the cheque was forcefully taken by the complainant and she had not affixed signature on the cheque. The complainant has forged it. Next she says that she had given it for the purpose of security. At the next level she says that she has issued a blank signed cheque and the rest has been filled by the complainant. At the last she says that as the complainant had asked for the cheque she had given it.
26. A person who is not consistent with his statements at different period of time is certainly not worthy of belief. If at all she had not given Ex.P1 cheque to the complainant, her statements at any period of time would have been the same. Suppose she had given a blank signed cheque to 22 C.C.No.5682/2019 the complainant she would have been consistent with her stand that except the signature in the Ex.P1 cheque all other writings including the amount are not filled by her. The inconsistent statement made by the accused simply shows that she has infact no stand to make and when viewed from a specs of a common prudent man, her statements creates a heap of doubt and makes this court to arrive at the possibility of the issuance of the cheque marked at Ex.p1 for the amount received by the accused.
27. In the alternative, when the accused has admitted the transfer of the amount, the validity of the blank signed cheque depends on the proof of the alleged repayment of the amount which is discussed hereinafter.
23
C.C.No.5682/2019 AMOUNT REPAID:
28. It is the second defence of the accused that she has repaid the amount to the complainant. At this juncture, I have gone through the entire case papers once again carefully. Needless to state that at the time of recording of the plea the accused did not whisper about the repayment of he amount as she now contends. During the course of cross-examination of PW.1 at page-13 she states that only an amount of Rs.50,000/- to Rs.1 lakh was in balance and she has repaid the entire amount. The relevant portion of the cross examination is at page-13:
"ಆರೋಪಿ ನಾನು 15 ಲಕ್ಷ ರೂಗಳನ್ನು ಅವರಿಗೆ ವರ್ಗಾವಣೆ ಮಾಡಿದ ನಂತರ ಪ್ರತೀ ತಿಂಗಳು ನನ್ನ ಖಾತೆಗೆ ಹಣ ಸಂದಾಯ ಮಾಡಿರುವುದರಿಂದ ಅದು 15 ಲಕ್ಷ ಮರು ಪಾವತಿ ಮಾಡುವುದಕೋಸ್ಕರ ವರ್ಗಾವಣೆ ಮಾಡಿದ ಹಣ ಎಂದರೆ ಸರಿಯಲ್ಲ. ಆರೋಪಿ 24 C.C.No.5682/2019 50000 ದಿಂದ 100000 ರೂ ಮಾತ್ರ ಹಣ ಕೊಡುವುದು ಬಾಕಿ ಉಳಿದಿದ್ದು ಅವರಿಂದ ಒತ್ತಾಯ ಪೂರ್ವಕವಾಗಿ ಖಾಲಿ ಸಹಿ ಮಾಡಿದ ಚೆಕ್ಕನ್ನು ಪಡೆದಿರುತ್ತೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ ."
At page-18 of the cross examination of PW.1 the accused states that out of Rs.15 lakhs the balance is only Rs.9,65,000/-.
" ಆರೋಪಿಯಿಂದ ನನಗೆ ಕೇವಲ
ರೂ.9,65,000 ಮಾತ್ರ ಬರಬೇಕಾಗಿದೆ
ರೂ.15,00,000/- ಗಳಲ್ಲ ಎಂದರೆ ಸುಳ್ಳು . ಆರೋಪಿಯಿಂದ ನನಗೆ ರೂ.15,00,000/- ಗಳು ಬರಬೇಕಾಗಿದೆ ಎಂದು ಸುಳ್ಳು ಪ್ರಕರಣ ದಾಖಲಿಸಿ ಸುಳ್ಳು ಸಾಕ್ಷ್ಯ ನುಡಿಯುತ್ತಿದ್ದೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ". During the cross examination of PW.1 page 12 the accused states that she has paid the entire amount of Rs.15 lakhs.
" ಆರೋಪಿ ಫೆಬ್ರವರಿ 2018 ರಿಂದ 2019 ಕೊನೆಯವರೆಗೆ ತಿಂಗಳಿಗೆ 45000 ರೂಗಳಂತೆ ಮತ್ತು ಕೆಲವು ಬಾರಿ ಅದಕ್ಕಿಂತ ಹೆಚ್ಚಿನ ಮೊತ್ತವನ್ನು ನೇರವಾಗಿ ಖಾತೆಗೆ 25 C.C.No.5682/2019 ಹಾಗೂ ಕೆಲವು ಬಾರಿ ಆರ್ ಟಿಜಿಎಸ್ ಮುಖಾಂತರ ವರ್ಗಾವಣೆ ಮಾಡುತ್ತಾ ಬಂದಿದ್ದು 15 ಲಕ್ಷವನ್ನು ಮರುಪಾವತಿ ಮಾಡಿರುತ್ತಾರೆ ಎಂದರೆ ಸರಿಯಲ್ಲ ."
At page 10 and 11 of the cross examination of DW.1 she states that she has paid more than 15 lakhs.
" ಈ ಪ್ರಕರಣದ ವ್ಯವಹಾರ ಅಲ್ಲದೇ
ಆರೋಪಿಯ ಜೊತೆಗೆ ಬೇರೆ ವ್ಯವಹಾರಗಳು
ಇದ್ದವು. ಸಾಕ್ಷಿ ಮುಂದುವರಿದು ಆರೋಪಿ ನನ್ನ ಕಡೆಯಿಂದ ಬಟ್ಟೆ ಮತ್ತು ಒಡವೆಗಳನ್ನು ಪಡೆಯುತ್ತಿದ್ದರು, ಅದಕ್ಕೆ ಸಂಬಂಧಿಸಿದಂತೆ ಹಣ ವರ್ಗಾವಣೆ ಮಾಡುತ್ತಿದ್ದರು ಎಂದು ಹೇಳುವರು.
ಸದರಿ ವಿಷಯವನ್ನು ನಾನು ಇದೇ ಮೊದಲ
ಬಾರಿಗವೆ ನ್ಯಾಯಾಲಯದಲ್ಲಿ ಹೇಳುತ್ತಿದ್ದೇನೆ
ಎಂದರೆ ಸರಿ. ನೋಟಸಿನಲ್ಲಿ ಮತ್ತು
ಪಿರ್ಯಾದಿಯಲ್ಲಿ ಸದರಿ ವಿಷಯ ನಮೂದು ಇಲ್ಲ ಎಂದರೆ ಸರಿ. ಸಾಕ್ಷಿ ಮುಂದುವರಿದು ಸದರಿ ವ್ಯವಹಾರಕ್ಕೂ ಮತ್ತು ಈ ಪ್ರಕರಣದ ವ್ಯವಹಾರಕ್ಕೂ ಸಂಬಂಧ ಇಲ್ಲದ ಕಾರಣ ನಮೂದಿಸಿಲ್ಲ ಎಂದು ಹೇಳುವರು.."
26
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29. Once again there is consistency in the say of the accused as to what quantum of amount has been paid by her. This itself creates a doubt in the mind of the Court. If at all she has repaid the amount to the complainant, what prevented from her producing of any document which would substantiate it is not explained. Or atleast she should have been very specific as to the amount she has repaid.
30. During the course of cross examination of PW.1 the witness admits the payment of amount of Rs.5,35,000/- at various dates from the account of the accused, her husband and her parents. But she says that the said payments were pertaining to different transaction as the accused used to get clothes and jewelries from the complainant from Pune to Bengaluru. The relevant portion of the 27 C.C.No.5682/2019 cross examination is at:
""ದಿ.10.08.2017 ರಂದು ಆರೋಪಿಯ ತಂದೆ ಆರೋಪಿಯ ಪರವಾಗಿ ರೂ.2,50,000/- ಗಳನ್ನು ಜಮಾ ಮಾಡಿದ್ದಾರೆ ಎಂದರೆ ಆರೋಪಿಯ ಪರವಾಗಿ ಅಲ್ಲ. ದಿ.10.08.2017 ರಂದೇ ಅರೋಪಿಯ ತಾಯಿ ಆರೋಪಿಯ ಪರವಾಗಿ ರೂ. 1,65,000/- ಗಳನ್ನು ಜಮಾ ಮಾಡಿದ್ದಾರೆ ಎಂದರೆ ಆರೋಪಿಯ ಪರವಾಗಿ ಅಲ್ಲ. ದಿ.10.04.2018 ರಂದು ಆರೋಪಿ ನನ್ನ ಖಾತೆಗೆ ರೂ. 45,000/- ಗಳನ್ನು ಜಮಾ ಮಾಡಿದ್ದಾರೆ ಎಂದರೆ ಸರಿ. ಅದೇ ರೀತಿ ದಿ.10.05.2018 ರಂದು ಆರೋಪಿ ನನ್ನ ಖಾತೆಗೆ ರೂ. 45,000/-ಗಳನ್ನು ಜಮಾ ಮಾಡಿದ್ದಾರೆ ಎಂದರೆ ಸರಿ. ದಿ.10.07.2018 ರಂದೂ ಸಹ ಆರೋಪಿ ನನ್ನ ಖಾತೆಗೆ ರೂ.45,000/-ಗಳನ್ನು ಜಮಾ ಮಾಡಿದ್ದಾರೆ ಎಂದರೆ ಸರಿ.ಆರೋಪಿ ಹಾಗೂ ಅವರ ತಂದೆ ತಾಯಿ ಒಟ್ಟು ನನಗೆ ರೂ. 5,35,000/-ಗಳನ್ನು ನೀಡಿದ್ದಾರೆ ಎಂದರೆ ಹಾಲಿ ಪ್ರಕರಣಕ್ಕೆ ಸಂಬಂಧಿಸಿದ ಹಣ ಅದಲ್ಲಾ, ಈ ಹಿಂದೆ ಆರೋಪಿ ನನ್ನಿಂದ ವಸ್ತುಗಳನ್ನು ಖರೀದಿಸಿದ್ದರು, ಅದರ ಬಾಬ್ತು ಹಣ ನೀಡಿದ್ದಾರೆ, ಚೆಕ್ಕು ನೀಡಿದ ನಂತರ ಯಾವುದೇ ಹಣವನ್ನು ನೀಡಿಲ್ಲ."
31. Keeping this in mind, I have gone through the case papers once again carefully. Ex.P1 cheque is dt:10.10.2018 as per Ex.C1 and 28 C.C.No.5682/2019 the cross examination of PW.1 the last date of payment is 10.07.2018.
32. The Hon'ble Apex Court in Dhasharath Bhai Trikambhai Patel v/s Hitesh Mahendrabhai Patel and another reported in (2023) 1 SCC 578 if at all any payment is made from the date of the loan and before the presentation of the cheque, an endorsement in the cheque is necessary. If such an endorsement is not made the complaint is liable to be dismissed. The counsel for the accused prays to apply the ratio laid down to the case on hand.
33. Subsequent to the date of issuance of the cheque, I do not find any evidence placed on record to show that the accused has repaid the amount. Therefore, the mandate as contemplated 29 C.C.No.5682/2019 under the Dhasharath Bhai case stated supra is not applicable to the case on hand. Secondly, if at all the accused has repaid the a large portion of the amount or the entire amount as stated by her, she could have initiated legal action against the complainant or she could have issued a legal notice to the complainant for the return of the cheque. No such due diligence is made out by the accused.
34. That apart when the entire case papers are read in between the lines I do not find the period of time asserted by the accused on which the accused had issued the cheque to the complainant. As per Sec.118 of the N.I Act a presumption has to be raised by this court that the date that is reflecting in the cheque is the date on which it was drawn and issued by the accused. 30
C.C.No.5682/2019
35. Suppose the cheque was issued by the accused way back to the period apart from the date mentioned in the Ex.P1 cheque, I am unable to understand what prevented the accused from disclosing the date on which the said cheque was issued and as she has repaid the amount pertaining to this transaction on various dates and the legally recoverable debt is not to the tune of amount as mentioned in Ex.P1. No such evidence is forthcoming from the records.
36. Therefore viewed from any angle, if all the above evidence is considered as a whole in the light of the above reported judgment, on the hilt of preponderance of probablities, I find from the specs of a common prudent man that the defence theory that the accused has repaid the loan or a 31 C.C.No.5682/2019 part of the loan seems to be improbable, unacceptable and stands without any base. The legally recoverable debt stands probabilised. Hence, I answer the point No.1 in the AFFIRMATIVE.
37. Point No.2: The Cheque is dated 10.10.2018. Ex.P2 shows that Ex.P1 was dishonoured on 17.10.2018 & 26.12.20218 for Payment stopped by the drawer and Drawers Signature differs. A legal notice was issued within the statutory period on 21.01.2019. The complaint is presented on 28.02.2019. The complaint is in time and the complainant has complied with all the requirements of the section 138 of the Negotiable Instruments Act.
38. On the basis of the entire materials on record, I am of the opinion that the accused has 32 C.C.No.5682/2019 committed an offence under section 138 of the Negotiable Instruments Act. Accordingly I answer the POINT NO.2 In The Affirmative.
39. Point No.3: For the foregoing reasons and in view of the above findings, I pass the following:
ORDER The accused is found guilty.
In Exercise of the Powers vested under section 255(2) of Cr.P.C., the accused is convicted for the offence punishable under section 138 of N.I.Act.
The accused is sentenced to pay fine amount of Rs.15,10,000/- (Fifteen lakhs Ten Thousand Only) In default of payment of fine, the accused shall undergo SI for three months.
In Exercise of the powers vested under Sec.357(1)(b) of Cr.P.C., out of the fine amount, the complainant 33 C.C.No.5682/2019 is entitled for Rs.15,05,000/- (Fifteen Lakhs Five Thousand Only ) towards compensation.
In Exercise of the powers vested under Sec.357(1) (a) of Cr.P.C., the remaining fine amount of Rs.5,000/- (Rupees Five Thousand only) is to be remitted to the state.
The personal bond executed by the accused shall stand cancelled and the cash security deposited by the accused shall be refunded to the accused after the appeal period is over.
A copy of the above judgment shall be supplied to the accused free of cost.
(Dictated to the Stenographer, transcribed and typed by her, corrected and signed and then pronounced by me in the open court on this the 6th day of May, 2025).
KS Digitally signed by K S
NAMRATHA RAO
NAMRATHA Date: 2025.05.07
RAO 17:38:32 +0530
(Smt. NAMRATA RAO K.S)
XV ACMM, Bengaluru.
ANNEXURE
LIST OF WITNESSES EXAMINED FOR THE
COMPLAINANT:
PW.1 : Smt. Mamta Manjunath
34
C.C.No.5682/2019
LIST OF DOCUMENTS MARKED FOR THE
COMPLAINANT:
Ex.P1 : Cheque
Ex.P1(a) : Signature of the accused
Ex.P2 & 3 : 2 Bank Endorsements
Ex.P4 : Notice
Ex.P5 : Postal receipt
Ex.P6 : Postal acknowledgment
Ex.P7 & 8 : 2 Bank statements
Ex.P7(a) Relevant entry
Ex.P9 : Bank pass book
Ex.P10 : Certified copy of decree
LIST OF WITNESSES EXAMINED FOR THE
ACCUSED:-
DW.1 : Kavya. S
LIST OF DOCUMENTS MARKED FOR THE
ACCUSED:-
- NIL-
LIST OF DOCUMENTS MARKED UPON CONSENT:
Ex.C1 : Bank Statement (Smt. NAMRATA RAO K.S) XV ACJM, Bengaluru.35
C.C.No.5682/2019 06.05.2025 (Judgment pronounced in the open court) ORDER The accused is found guilty.
In Exercise of the Powers vested under section 255(2) of Cr.P.C., the accused is convicted for the offence punishable under section 138 of N.I.Act.
The accused is sentenced to pay fine amount of Rs.15,10,000/- (Fifteen lakhs Ten Thousand Only) In default of payment of fine, the accused shall undergo SI for three months.
In Exercise of the powers vested under Sec.357(1)(b) of Cr.P.C., out of the fine amount, the complainant is entitled for Rs.15,05,000/- (Fifteen Lakhs Five Thousand Only ) towards compensation.
In Exercise of the powers vested under Sec.357(1) (a) of Cr.P.C., the remaining fine amount of Rs.5,000/- 36
C.C.No.5682/2019 (Rupees Five Thousand only) is to be remitted to the state.
The personal bond executed by the accused shall stand cancelled and the cash security deposited by the accused shall be refunded to the accused after the appeal period is over.
A copy of the above judgment shall be supplied to the accused free of cost.
(Vide separate judgment) XV ACJM, Bengaluru.