Bangalore District Court
That Accused Have Not Repaid The Said vs Neither Paid The Said Amount Nor Replied ... on 10 March, 2020
IN THE COURT OF THE XXVIII ADDL. CHIEF
METROPOLITON MAGISTRATE NRUPATHUNGA ROAD,
BENGALURU CITY
Present:- Sri. ABDUL RAHIM HUSSAIN SHAIKH
B.Sc, B.Ed, LLB(Spl)
XXVIII A.C.M.M
Bengaluru City.
Dated this the 10th day of March, 2020
CC.No.20277/2014
JUDGMENT
1. Sl.No. of the case : C.C.No.20277/2014
2. The date of commence of Evidence : 19.01.2015
3. The date of Institution : 16.07.2014
4. Name of the Complainant : Smt. Sangeeta Jalan Aged about 48 years, Proprietrix, M/s Tradelinc, No.10/1, 9th E Cross, 5th block, Kamakya Layout, BSK 3rd stage, Bangalore-560 085.
5. Name of the Accused : Smt. Vijaya Venkatesh, W/o Venkatesh, Aged about 49 years, R/at No.744, 53rd main road, Kumaraswamy Layout 1st stage, Bangalore-560 078.
2 CC.No. 20277/2014
6. The offence complained : U/s.138 of N.I. Act
7. Plea of the accused on his examination : Pleaded not guilty
8. Final Order : Accused is Convicted
9. Date of such order : 10.03.2020 JUDGMENT
1. This case has been registered against the accused on the basis of the complaint filed by the complainant u/s 200 of Cr.P.C for the offence punishable u/s 138 r/w 142 of N.I. Act.
2. The gist of the complainant's case is that :
The complainant dealing in a business of purchase and sale of Diamond jewelries under the name and style of M/s Tradeline and accused acquainted with complainant for more than five years was dealing in purchase of jewelries. It is the case of the complainant that accused had purchased the jewelries on credit basis on different dates for an amount of Rs.1,20,00,000/-. It is also case of the 3 CC.No. 20277/2014 complainant that accused have not repaid the said amount inspite of request and had entered into a Memorandum of Understanding with complainant on 22.11.2012 acknowledging and confirming the credit purchase of gold jewelries of Rs.1,20,00,000/-. For the repayment of the above said amount of Rs.1,20,00,000/-, accused has issued in all six cheques in favour of the complainant as follows:-
Date Cheque No. Amount Bank Details 17.03.2014 351217 10,00,000/- The Hanumanthanagar Coop Bank Ltd, Hanumanthanagar, Bangalore 24,03.2014 351216 10,00,000/- -
31.03.2014 480514 25,00,000/- Punjab National Bank, KG Rd, B'lore 07.04.2014 480515 25,00,000/- -
14.04.2014 480516 25,00,000/- -
21.04.2014 480517 25,00,000/- -
In the instant case the complainant presented one of the cheque bearing No.480514 dt:31.03.2014 for an amount of Rs.25,00,000/- drawn on The Punjab National Bank, Kempe Gowda road, Bangalore issued 4 CC.No. 20277/2014 by the accused in discharge of his legal debt which on presentation through his banker Punjab National Bank, KG road, Bangalore on 13.05.2014 was dishonoured with the reason 'Funds Insufficient'. The complainant issued a notice on 07.06.2014 through RPAD requesting the accused to repay the cheque amount within 15 days from the date of receipt of the said notice and even after the service of the notice accused neither paid the said amount nor replied to the said notice. Accordingly, the complainant filed the complaint against the accused for having committed an offence punishable u/s 138 of N.I. Act on 16.07.2014.
3. In pursuance of the summons, the accused has appeared through Counsel and got enlarged on bail by executing necessary documents. The copy of the complaint was furnished to the accused, as required under law. As there was sufficient material, plea was recorded against the accused on 15.10.2014 and 5 CC.No. 20277/2014 explained to the accused in her vernacular, for which the accused pleaded not guilty and claims to be tried.
4. In order to prove the case, the Proprietor of the complainant Company Sri. Sangeeta Jalan examined as PW1 and got marked Ex.P1 to 7. Then the statement u/s 313 Cr.P.C was recorded on 11.10.2019 wherein the incriminating evidence appeared against the accused was read over and explained which was denied by the accused. Accused examined herself as DW1 and got marked Ex.D1 on her behalf.
5. The learned Counsel for complainant argued that complainant dealing in a business of purchase and sale of Diamond jewelries under the name and style of M/s Tradeline and accused acquainted with complainant for more than five years was dealing in purchase of jewelries. It is the case of the complainant that accused had purchased the jewelries on credit basis on different dates for an 6 CC.No. 20277/2014 amount of Rs.1,20,00,000/-. It is also case of the complainant that accused have not repaid the said amount inspite of request and had entered into a Memorandum of Understanding with complainant on 22.11.2012 acknowledging and confirming the credit purchase of gold jewelries of Rs.1,20,00,000/-. For the repayment of the above said amount of Rs.1,20,00,000/-, accused has issued in all six cheques in favour of the complainant as follows:-
Date Cheque No. Amount Bank Details 17.03.2014 351217 10,00,000/- The Hanumanthanagar Coop Bank Ltd, Hanumanthanagar, Bangalore 24,03.2014 351216 10,00,000/- - 31.03.2014 480514 25,00,000/- Punjab National Bank, KG Rd, B'lore 07.04.2014 480515 25,00,000/- - 14.04.2014 480516 25,00,000/- - 21.04.2014 480517 25,00,000/- -
In the instant case the complainant presented one of the cheque bearing No.480514 dt:31.03.2014 for an amount of Rs.25,00,000/- drawn on The Punjab 7 CC.No. 20277/2014 National Bank, Kempe Gowda road, Bangalore issued by the accused in discharge of his legal debt which on presentation through his banker Punjab National Bank, KG road, Bangalore on 13.05.2014 was dishonoured with the reason 'Funds Insufficient'. The complainant issued a notice on 07.06.2014 through RPAD requesting the accused to repay the cheque amount within 15 days from the date of receipt of the said notice and even after the service of the notice accused neither paid the said amount nor replied to the said notice. Accordingly, the complainant filed the complaint against the accused for having committed an offence punishable u/s 138 of N.I. Act on 16.07.2014. It is submitted by the complainant that the ingredients of Sec.138 and 142 are duly complied with and prayed to convict the accused.
6. The learned Counsel for accused contended that she had carried out the business of purchase of gold ornaments from the complainant and for which she 8 CC.No. 20277/2014 has kept the Title Deeds of her property as security and also had issued 6 blank signed cheques. It is further contended by the accused that by misusing the said blank signed cheques the complainant had filed 6 cases including this case claiming an amount of Rs.1,20,00,000/-. It is also contention of the accused that on 06.02.2015 a Joint Memo was executed between the complainant and the accused and in the said joint memo the complainant & accused settled for Rs.65,00,000/- and accordingly accused paid Rs.45,00,000/- through DD to the complainant and obtained the Title Deed of her property which was kept for security. It is further contention of the accused is that she had paid Rs.6,00,000/- through her Corporation Bank Account and had paid Rs.6,00,000/- to the complainant in different installments. Further it is the contention of the accused is that she is only due for an amount of Rs.8,00,000/- and she 9 CC.No. 20277/2014 is ready to pay the same. Hence, it is prayed by the learned Counsel for the accused that there is no legal enforceable debt on as on the date of issuance of the cheque may kindly be acquitted.
7. Heard arguments and perused the material placed on record.
8. On the basis of the above facts, the following points arise for my consideration:
1. Whether the complainant proves that the accused towards discharge of legal recoverable debt issued cheque bearing No.480514 dt:31.03.2014 for Rs.25,00,000/- drawn on Punjab National bank, Kempegowda road, Bangalore, in favour of complainant, on presentation for encashment it was returned as 'Funds Insufficient' and in spite of receipt of legal notice, the accused failed to pay the cheque amount within the statutory period and thereby the accused has committed an offence punishable u/s 138 of N.I. Act? 10 CC.No. 20277/2014
2. What order?
9. My findings on the above points are as under :
Point No.1: In the Affirmative Point No.2: As per final order, for the following:
REASONS
10. Point No.1:- In order to prove the case, the Proprietor of the complainant Company Sri. Sangeeta Jalan filed affidavit by way of examination-in-chief and has reiterated the allegations made in the complaint on oath and got marked Ex.P1 to P.8. In the evidence of PW1 the complainant has deposed that complainant firm M/s Tradeline was involved in the business of the purchase and sale of Diamond jewelries and accused was purchasing the jewelries on credit basis. It is further deposed by PW1 that accused purchased jewelries on different dates and was due for an amount of Rs.1,20,00,000/- and for confirmation of the said debt entered into a 11 CC.No. 20277/2014 Memorandum of Understanding with complainant on 22.11.2012 acknowledging the credit purchase of gold jewelries of Rs.1,20,00,000/-. It is further evidence of PW1 that for the repayment of the said amount of Rs.1,20,00,000/-, accused has issued in all six cheques in favour of the complainant as follows:-
Date Cheque No. Amount Bank Details 17.03.2014 351217 10,00,000/- The Hanumanthanagar Coop Bank Ltd, Hanumanthanagar, Bangalore 24,03.2014 351216 10,00,000/- - 31.03.2014 480514 25,00,000/- Punjab National Bank, KG Rd, B'lore 07.04.2014 480515 25,00,000/- - 14.04.2014 480516 25,00,000/- - 21.04.2014 480517 25,00,000/- -
and when the said cheques were presented for encasement through the Punjab National Bank, KG road, Bangalore on 13.05.2014 were dishonoured with the reason 'Funds Insufficient'. In order to prove the said fact accused has produced document Ex.P1 the cheque bearing No.480514 dt:31.03.2014 for an amount of Rs.25,00,000/- drawn on Punjab 12 CC.No. 20277/2014 National Bank, Kemkpe Gowda Road, Bangalore. On perusal of the said document it is found that the said cheque is one of the cheque that has been issued by the accused in discharge of her legal debt to the complainant with the signature Ex.P1(a) on the said cheque. The complainant has also produced Ex.P2 the memo issued by the bank disclosing that the said cheque was dishonoured for the reason 'fund insufficient'. Further in the evidence the complainant has also produced Ex.P4, 7 tax invoices disclosing the transaction regarding the purchase of jewelries by the accused with the complainant. This document clearly discloses that the accused was involved in purchasing the jewelries from the complainant on different occasions for which tax invoices have been raised by the complainant firm. The complainant has also produced Memorandum of Understanding Ex.P2 entered between the complainant and the accused. On careful perusal 13 CC.No. 20277/2014 of the said document it clearly discloses that there was transaction regarding gold ornaments between complainant and accused in which accused was in due of Rs.1,20,00,000/- to the complainant. It is pertinent to note that in the cross examination of PW1 the accused counsel have suggested the complainant that the complainant filed 6 cases against the 6 cheques issued by the accused for the said transaction. The said suggestion that the complainant filed 6 cases regarding 6 different cheques issued by the accused for the transaction of purchase of jewelries was admitted by complainant/PW1. It is pertinent to note that in the evidence of DW1 accused admitted that regarding the outstanding due of Rs.1,20,00,000/- gold ornament transaction 6 cheques were issued by the accused and after the dishonour of the cheques complainant filed 6 cases against her. In view of the same there is no dispute between the complainant and accused 14 CC.No. 20277/2014 that accused was in due of Rs.1,20,00,000/- and for the discharge had issued 6 cheques which have been dishonoured and 6 separate cases have been registered by the complainant against the accused. In the cross examination of PW1 accused counsel suggested that both complainant and the accused after settling the dispute has filed a joint memo on 06.02.2015 before court agreeing the outstanding due has Rs.65,00,000/- in all the 6 cases. It is very pertinent to note that PW1 admitted the said fact and also admitted the document joint memo on confrontation which was marked as Ex.D1. It is equally important to note that in the evidence of accused/DW1 she too had deposed that on 06.02.2015 a joint memo has been filed by both the parties settling the outstanding due for Rs.65,00,000/-. In the instant case the said joint memo pertaining to all 6 cases has been marked as Ex.D1. On perusal of the said document it discloses 15 CC.No. 20277/2014 that both the parties have filed a joint memo for all the 6 cases:-
1.CCNo.20276/2014
2.CCNo.20277/2014
3.CCNo.20279/2014
4.CCNo.20280/2014
5.CCNo.20282/2014
6.CCNo.20283/2014 Before the court contending that the complainant and the accused have settled the dispute for a sum of Rs.65,00,000/- instead of Rs.1,20,00,000/- out of the cheque amount in all the case. In the cross examination of PW1 it is suggested to PW1 by the accused counsel that after the execution of the joint memo between the parties in the present case the accused has paid an amount of Rs.45,00,000/-
through DD, Rs.5,90,000/- through RTGS and he is only in due for an amount of Rs.8,00,000/-. The said fact regarding the due of Rs.8,00,000/- has been denied by the complainant /PW1 contending that 16 CC.No. 20277/2014 accused is in due for payment of Rs.14,10,000/- till date. At this juncture it would be crystal clear if the cross examination DW1 is appreciated on the said fact. I would like to reproduce the relevant portion of cross examination of DW1 :
DgÀÆ ZÉPÀÄÌUÀ½UÉ ¸ÀA§A¢ü¹zÀAvÉ £ÁåAiÀiÁ®AiÀÄzÀ°è F ¥ÀæPÀgÀt ¸ÉÃj DgÀÄ ¥ÀæPÀgÀtUÀ¼ÀÄ £À£Àß «gÀÄzÀÞ zÁR¯ÁVgÀÄvÀÛªÉ. ¸ÀzÀj DgÀÆ ¥ÀæPÀgÀtUÀ¼À ZÉPÀÄÌUÀ½UÉ ¸ÀA§A¢ü¹zÀAvÉ £Á£ÀÄ 65 ®PÀë ªÉÆvÀÛPÉÌ Joint Memo ªÀ£ÀÄß ¦AiÀiÁð¢UÉ §gÉzÀÄPÉÆnÖgÀÄvÉÛãÉ. ¸ÀzÀj 65 ®PÀë ªÉÆvÀÛªÀ£ÀÄß JAlÄ PÀAvÀÄUÀ¼À°è ¥ÁªÀw¸ÀĪÀÅzÁV M¦àPÉÆrzÉÝ JAzÀgÉ ¸Àj. ¸ÀzÀj M¥ÀàAzÀzÀAvÉ £Á£ÀÄ 45 ®PÀë ºÀtªÀ£ÀÄß ¦AiÀiÁð¢UÉ ¥ÁªÀw ªÀiÁr G½zÀ 20 ®PÀë ºÀt PÉÆqÀ®Ä M¦àzÉÝ JAzÀgÉ ¸Àj. £ÀAvÀgÀ PÉêÀ® MAzÀÄ ®PÀë ºÀtªÀ£ÀÄß ªÀiÁvÀæ £Á£ÀÄ ¦AiÀiÁð¢UÉ ¢B15.10.2015 gÀAzÀÄ 50,000 ªÀÄvÀÄÛ ¢B17.11.2015 gÀAzÀÄ 50,000 ºÀt ¥ÁªÀw¹zÉÝ JAzÀgÉ ¸Àj. D£ÀAvÀgÀ £Á£ÀÄ ¦AiÀiÁð¢UÉ ¢B12.11.2016 gÀAzÀÄ J¸ï©L ¨ÁåAPï£À ZÉPï £ÀA.894117 ªÀÄÆ®PÀ 60 ¸Á«gÀ ºÀtªÀ£ÀÄß ¥ÁªÀw ªÀiÁrzÉÝÃ£É JAzÀgÉ ¸ÁQëAiÀÄÄ ¸Àj JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. ¢B17.11.2016 gÀAzÀÄ J¸ï©L ¨ÁåAPï£À ZÉPï £ÀA.894119 ªÀÄÆ®PÀ 40 ¸Á«gÀ ºÀtªÀ£ÀÄß ¥ÁªÀw ªÀiÁrzÉÝB£É JAzÀgÉ ¸ÁQëAiÀÄÄ ¸Àj JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ.
CzÉà jÃw ¢B12,11.2016 gÀAzÀÄ J¸ï©L ¨ÁåAPï£À ZÉPï 17 CC.No. 20277/2014 £ÀA.894126 ªÀÄÆ®PÀ 60 ¸Á«gÀ ºÀtªÀ£ÀÄß ¥ÁªÀw ªÀiÁrzÉÝB£É JAzÀgÉ ¸ÁQëAiÀÄÄ ¸Àj JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. CzÉà jÃw NEFT ªÀÄÆ®PÀ ¢B17.12.2016 gÀAzÀÄ 40 ¸Á«gÀ ºÀtªÀ£ÀÄß ¦AiÀiÁð¢UÉ ¥ÁªÀw ªÀiÁrgÀÄvÉÛÃ£É JAzÀgÉ ¸Àj. CzÉà jÃw NEFT ªÀÄÆ®PÀ ¢B19.12.2016 gÀAzÀÄ 1,00,000 ºÀtªÀ£ÀÄß ¦AiÀiÁð¢UÉ ¥ÁªÀw ªÀiÁrgÀÄvÉÛÃ£É JAzÀgÉ ¸Àj. CzÉà jÃw RTGS ªÀÄÆ®PÀ ¢B18,01,2017 gÀAzÀÄ 45 ¸Á«gÀ ºÀtªÀ£ÀÄß £À£Àß UÀAqÀ£À SÁvɬÄAzÀ ¦AiÀiÁð¢UÉ ¨ÁåAPï SÁvÉUÉ ªÀUÁð¬Ä¹zÉÝÃ£É JAzÀgÉ ¸Àj. CzÉà jÃw NEFT ªÀÄÆ®PÀ ¢B30.01.2017 gÀAzÀÄ 50 ¸Á«gÀ ºÀtªÀ£ÀÄß ¦AiÀiÁð¢UÉ ¥ÁªÀw ªÀiÁrgÀÄvÉÛÃ£É JAzÀgÉ ¸Àj. ¢B 07.09.2016 gÀAzÀÄ £Á£ÀÄ ¦AiÀiÁð¢UÉ 50 ¸Á«gÀ £ÀUÀzÀÄ ºÀtªÀ£ÀÄß ¥ÁªÀw¹zÉÝÃ£É JAzÀgÉ ¸Àj. CzÉà jÃw ¢B18.12.2016 gÀAzÀÄ £Á£ÀÄ ¦AiÀiÁð¢UÉ 40 ¸Á«ªÀ ºÀtªÀ£ÄÀ ß ¥ÁªÀw¹zÉÝÃ£É JAzÀgÉ ¸Àj. MlÄÖ ºÀt ¸ÉÃj¹ £Á£ÀÄ ¦AiÀiÁð¢UÉ PÉêÀ® gÀÆ.5,90,000 ºÀtªÀ£ÀÄß ªÀiÁvÀæ ¥ÁªÀw ªÀiÁrgÀÄvÉÛÃ£É JAzÀgÉ ¸ÁQëAiÀÄÄ ¸ÀjAiÀÄ®è JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. £Á£ÀÄ ¦AiÀiÁð¢UÉ E£ÀÆß gÀÆ.14,10,000 ºÀt PÉÆqÀ®Ä ¨ÁQ EgÀÄvÀÛzÉ JAzÀgÉ ¸ÁQëAiÀÄÄ ¸ÀjAiÀÄ®è, £Á£ÀÄ PÉêÀ® 8 ®PÀë ºÀt PÉÆqÀ®Ä ªÀiÁvÀæ ¨ÁQ EgÀÄvÀÛzÉ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. ¦AiÀiÁð¢UÉ PÉÆqÀ¨ÉÃPÁzÀ gÀÆ.14,10,000 ºÀtzÀ ¨ÁzÀsåvɬÄAzÀ vÀ¦à¹PÉƼÀÄîªÀ ¸À®ÄªÁV PÉêÀ® 7 ®PÀë ºÀt PÉÆqÀ¨ÉÃPÉAzÀÄ ¸ÀļÀÄî 18 CC.No. 20277/2014 ¸ÁQë £ÀÄrAiÀÄÄwÛzÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è. "
On analyzing the admission in evidence of DW1 it is crystal clear that there is no dispute between the complainant and the accused that after filing the joint memo and settling the payment of due for Rs.65,00,000/- accused has paid Rs.45,00,000/- to the complainant and for the outstanding remaining Rs.20,00,000/- accused has made part payment of Rs.5,90,000/- through NEFT, RTGS. It is very pertinent to note that according to the complainant accused is still in due for payment of Rs.14,10,000/- on the contrary accused contention is that she is due for Rs.8,00,000/- only to the complainant. On agreeing the documentary evidence it is found that accused has not produced any cogent evidence and relevant document to show that she has made cash payment of Rs.4,00,000/- and only is due of Rs.8,00,000/-. In the absence of cogent evidence and relevant document by the accused the contention of 19 CC.No. 20277/2014 accused that she has paid Rs.4,00,000/- cash and is due for Rs.8,00,000/- cannot be considered and accepted. Per contra, the complainant by overwhelming evidence and by admission of the accused/DW1 proved that out of Rs.65,00,000/- settled amount as per joint memo accused has made a payment of Rs.45,00,000/- at one stretch and for the remaining Rs.20,00,000/- as paid only Rs.5,90,000/- on various dates mentioned above through NEFT and RTGS and accused is in due of Rs.14,10,000/-. Further the complainant has also proved that at present the accused is in due for an outstanding balance of Rs.14,10,000/- in all the remaining 5 cases Nos. 20276/2014, 20279/2014, 20280/2014, 20282/2014, 20283/2014 including this case. In view of the same it is found that accused is liberty to makes a payment of Rs.14,10,000/- for the outstanding due in any one of 6 cases. On receipt of the outstanding 20 CC.No. 20277/2014 Rs.14,10,000/- by complainant in any one of 6 cases the matter stands closed.
12. In the cross examination of DW1 it is admitted by the accused that the cheque Ex.P1 and the signature Ex.P1(a) belongs to her. The only contention that has been taken by the accused is that the remaining portion of the cheque has been filled by the complainant as per their convenience and a false case have been filed against her.
13. On this point I would like to refer the dictum of law reported in the judgment of Hon'ble Supreme Court:
2019 SAR 2446 (Criminal) 309 Supreme Court, ( Bir Singh v/s Mukesh Kumar).
(E) Negotiable Instruments Act (26 of 1881), S, 138, 139 - Dishonour of cheque - Presumption as to legally enforceable debt - Rebuttal - Onus to rebut presumption that cheque issued in discharge of 21 CC.No. 20277/2014 debt or liability is on accused. (Para 36) (G)Negotiable Instruments Act, (26 of 1881), Ss.138, 139 - Presumption as to legally enforceable debt - Rebuttal - Signed blank cheque- If voluntarily presented to payee, towards payment, payee may fill up amount and other particulars and it in itself would not invalidate cheque - Onus would still be on accused to prove that cheque was not issued for discharge of debt or liability by adducing evidence. (Para-38).
(H) Negotiable Instruments Act (26 of 1881), Ss, 138- Dishonour of cheque - Complainant can fill up amount or particulars in blank cheque. (Para 38).
(J)Negotiable Instrument Act 26 of 1881), Ss. 138, 139 - Dishonour of cheque - Absence of finding that cheque was not signed by accused or not voluntarily made over to payee- No evidence regarding circumstances in which blank signed 22 CC.No. 20277/2014 cheque given to complainant - Cheque presumed to be filled in by complainant being payee in presence of accused, at his request or with his acquiescence- No change in amount, its date or name of payee- Subsequent filing in of an unfilled signed cheque is not alteration- Accused liable to be convicted. This ruling is applicable to the present facts and circumstances of the case since in para-36, 37, 38 & 40 the Hon'ble Supreme court has clearly laid down the dictum of law that the onus to rebut the presumption u/s 139 that the cheque has been issued in discharge of a debt or liability is on the accused and the fact that the cheque may be post dated does not absolve the drawer of the cheque of a penal consequences of sec.138 of the N.I Act. In the instant case accused though contended that the disputed cheques have been obtained by the complainant for security and had been misused, but failed to prove the said fact by producing cogent 23 CC.No. 20277/2014 evidence and relevant document. In view of the dictum of law laid down by the Hon'ble Supreme Court the contention that has been taken by the accused counsel in the cross examination that the disputed cheque Ex.P1 has been filled as per the convenience by the complainant cannot be taken into consideration and accepted. On perusal of the said ruling the Hon'ble Supreme Court had made it very clear that if a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill of 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 debt or liability by adducing evidence. It is further held that even blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption u/s 139 of the Negotiable Instrument Act, in the absence of any cogent 24 CC.No. 20277/2014 evidence to show that the cheque was not issued in discharge of a debt. It is also held that the provisions of Sec.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. In the instant case the accused has never denied the disputed cheque Ex.P1 and the signatures Ex.P1(a) on the said cheque and has never taken the contention that she was not due for payment of any due to the complainant. It is very pertinent to note that the accused/DW1 had admitted the execution of the Memo of understanding Ex.P8 and the execution of the Joint Memo Ex.D1 produced. Further in view the admission of the accused the complainant has 25 CC.No. 20277/2014 clearly established that in discharge of legal debt and liability the accused had issued the disputed cheque Ex.P1 with signature Ex.P1(a) on the said cheque. In the instant case the complainant by overwhelming evidence has proved from the admission of DW1 that the accused has paid only Rs.50,90,000/- out of Rs.65,00,000/- and he is still in due for the payment of Rs.14,10,000/-. The dictum of law laid down by Hon'ble Supreme Court in this ruling is squarely and aptly applicable to the present facts and circumstances of the case. From the above reasons and discussions accused has utterly failed to rebut the presumption existing in favour of the complainant u/s 139 of the N.I Act and also failed to establish that the cheque Ex.P1 as never been issued by him in discharge of his legal debt and liability.
14. At this juncture I would also like to discuss the citation reported in AIR 2018 Hon'ble Supreme Court 3601 (T.P Murugan (Dead) Thr.Lrs.V Bojan AND Posa 26 CC.No. 20277/2014 Nandhi Rep.Thr, POA Holder, T.P Murugan v. Bojan) In this ruling at para-8 the Hon'ble Supreme Court has laid down the dictum of law that u/s 139 of the N.I Act, once a cheque has been signed and issued in favour of the holder, there is statutory presumption that it is issued in discharge of a legally enforceable debt or liability by referring to K.N.Beena v/s Muniyappan and Another, (2001) 8 SCC 458, para-6 and Rangappa v/s Shrimohan (2010) 11 SCC 411, para 26 . It is further held that the presumption is a rebuttable one, if the issuer of the cheque is able to discharge the burden that it was issued for some other purpose like security for a loan.
The dictum of law laid down by Hon'ble Supreme Court in this case is aptly applicable to the fact and circumstances of the present case since accused has utterly failed to rebut the presumption u/s 139 of N.I Act existing in favour of the complainant that the 27 CC.No. 20277/2014 cheque Ex.P1 issued by her is not for discharge of any legal debt or liability. Per contra, the complainant has proved the case by overwhelming evidence to establish that the accused for the repayment of the due amount of the gold ornament transaction with the complainant had issued the disputed cheque in discharge of legal debt and liability. From all these reason it is crystal clear that accused is not entitle for any relief u/s 138 of N.I Act. At this juncture I would also like to discuss the ruling reported in:-
AIR 2019 SUPREME COURT 1876 Rohitbhai Jivanlal Patel v/s State of Gujarat and another (B) Negotiable Instruments Act (26 of 1881), Ss.118, 138 - Dishonour of cheque - Presumption in favour of holder - All basic ingredients of Ss.138, 118 and 139 are apparent on fact of record - Therefore, it is required to be presumed 28 CC.No. 20277/2014 that cheques in question were drawn for consideration and complainant received it is discharge of an existing debt.
(D) Negotiable Instruments Act (26 of 1881), Ss.
138, 139 - Dishonour of cheque - Principles of presumption - Once presumption of existence of legally enforceable debt drawn in favour of complainant, onus is shifted on accused - unless onus is discharged by accused that preponderance of probabilities are tilting in his favour, doubt on case of complainant cannot be raised for want of evidence regarding source of funds for advancing loan to accused.
On perusal of the ruling it is found that the ruling is applicable to the present facts and circumstances of the case. It is clearly held that an all basic ingredients of Sec.138, 118 and 139 are apparent on actual record then it is required to be presumed that the cheque in question was drawn for consideration 29 CC.No. 20277/2014 and the holder of the cheque i.e a complainant had received the same in discharge of an existing debt. The onus shifts on the accused who has to establish by probable defence so as to rebut such a presumption but in this case as per the discussion made above the accused has utterly failed to produce probable defence that the cheque that has been issued for refund of the security deposit was not issued in discharge of legal debt and liability. It is clearly held in the said judgment that unless the onus is discharged by accused that preponderance of probabilities are tilting in his favour, doubt on case of complainant cannot be raised.
15. It is the evidence of PW1 that after receiving the memo from the bank regarding dishonour of cheque issued Ex.P5 notice on 07.06.2014 through RPAD calling upon the accused to pay the cheque amount within 15 days from the date of receipt of the said notice and inspite of the service of the said notice 30 CC.No. 20277/2014 accused failed to pay the cheques amount nor replied. In order to prove the said fact the complainant has produced the notice Ex.P5 dated:07.06.2014 and the postal receipt Ex.P5(b) and postal acknowledgment Ex.P5(a) which discloses that the notice has been send through RPAD to the accused and the same has been duly served to the accused address. It is pertinent to note that no where in the cross examination of PW1 accused has taken the contention that the notice was not been served to the accused and the signature on the acknowledge Ex.P5(a) does not belong to the accused. It is equally important to note that though accused had lead her evidence but has not disputed the service of notice at any point of time.
16. At this juncture on this point regarding service of notice I would like to reproduce the principle laid down by the Hon'ble Apex Court of India in a decision reported in 2007 (3) Crimes 120 (SC) (C.C. Alavi Haji 31 CC.No. 20277/2014 V/s Palapetty Muhammed & Anr), 2007 AIR SCW 3578 (C.C.Avavi Haji v/s Palapetty Muhammed & Anor).
On perusal the said ruling it is found that the Hon'ble Supreme Court held at para- 8 that :
Sec.138 of the act does not require that the notice should be given only by 'post', yet in a case where the sender as a dispatched the notice by post with correct address written on it, the principle incorporated in section 27 of the General Clause Act 1897 (for short GC Act) could profitably be imported in such a case. It was held that in this situation service of notice is deemed to have been affected on the sendee unless he proves that it was not really served and that he was not responsible for such non service. Further at para -10 it is 32 CC.No. 20277/2014 held that : The requirement of clause (b) of the provisions of Sec.138 of the Act stands complied with and cause of action to file a complaint arises on the expiry of the period prescribed in clause (c) of the said proviso to Sec.138 for payment by the drawer of the cheque. Nevertheless it would be without prejudice to the right of the drawer to show that he had now knowledge that the notice are brought to his address.
This ruling is aptly applicable to the present case on the hand since the notice Ex.P5 has been duly served to the accused office as per the postal acknowledgment Ex.P5(a). It is pertinent to note that if notice sent through RPAD by correctly addressing drawer of the cheque, mandatory requirement of issue of notice in terms of (b) of proviso to u/s 138 of N.I. Act stands complied with. Therefore, sending 33 CC.No. 20277/2014 legal notice to the correct address of the accused as per the dictum of law laid down in the above case is sufficient to establish that the complainant has complied the mandatory provision u/s 138(b) of N.I. Act.
17. The word 'unless contrary is proved' is discussed by the Hon'ble Apex Court in a decision reported in 2011 Crl.L.J 4647 (SC). It is observed that "the accused is under the obligation to prove his case in trial by leading cogent evidence that there was no debt or liability to the satisfaction of the Court". 'Unless contrary is proved' means the presumption has to be rebutted by proof and not by a bare explanation which is mere plausible. The said fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that the reasonable man could act on the supposition that is exist. Therefore, unless explanation is supported by 34 CC.No. 20277/2014 proof, the presumption created by the provisions cannot be said to be rebutted. In the instant case accused failed to rebut the presumption and prove hera defence that on the date of issuing of cheque there are no legal debt and liability. Accordingly, I have no hesitation to arrive at the conclusion that accused has utterly failed to rebut the presumption.
18. In this case, the court on perusal of the materials placed before the court is satisfied that the mandatory requirements of Sec.138 and 142 of N.I. Act has been duly complied. It is evident that the cheque/Ex.P1 presented for encashment within the validity time, notice Ex.P5 demanding the cheque amount and filing of complaint/Ex.P7 before the court after service of notice are within the period of specified by law.
19. On appreciation of entire evidence, this court is of the opinion that the accused miserably failed to challenge the oral and documentary evidence 35 CC.No. 20277/2014 produced by the complainant. Accused has utterly fails to prove the fact that she has not issued cheques for discharge of legally enforceable debt. On the contrary, the complainant has proved through overwhelming evidence that the accused has issued Ex.P1/cheque for a sum of Rs.25,00,000/- towards discharge of legally enforceable debt and on presentation of the cheques, the same was dishonored for the reasons 'Funds Insufficient' and even after service of legal notice, the accused has not paid the cheques amount. Hence, in the considered view of this court, the complainant has proved that the accused has committed an offence punishable u/s 138 of N.I. Act and admitted that she is only entitle for Rs.14,10,000/-. Hence, I answer the above point No.1 in the affirmative.
20. Point No.2:- From the material on record, it appears that the accused is aged about 53 years and house wife. Considering the age, avocation of accused 36 CC.No. 20277/2014 and quantum of the cheque, if the accused is sent to jail, it would cause problem to the accused as well as to his family members. Having regard to the facts and circumstances, prevailing rate of interest in the nationalized Bank and litigation expenses, I proceed to pass the following:
ORDER The accused is found guilty for the offence punishable u/s 138 of N.I. Act.
Acting u/s 255(2) of Cr.P.C. the accused is convicted and sentenced to pay fine of Rs.14,15,000/- , in default shall undergo simple imprisonment for six months.
Out of fine amount of Rs.14,15,000/- a sum of Rs.14,14,000/- is ordered to be paid to the complainant towards compensation u/s 357(3) of Cr.P.C. and the balance amount of Rs.1,000/- shall be remitted to the State.
The bail bond executed by the accused shall 37 CC.No. 20277/2014 stand cancelled.
Supply free copy of the judgment to the accused. (Dictated to Stenographer directly on the Computer, taken print out corrected, signed by me and then pronounced in the open court this the 10th day of March, 2020) (ABDUL RAHIM HUSSAIN SHAIKH) XXVIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT :
PW1 : Smt. Sangeeta Jalan LIST OF WITNESSES EXAMINED ON BEHALF OF THE DEFENCE:
DW1 : Smt. Vijaya Venkatesh LIST OF DOCUMENTS MARKED ON BEHALF OF THE COMPLAINANT:
Ex.P1 : Cheque
Ex.P1(a) : Signature of the accused
Ex.P2 : Bank memo
Ex.P3 : C/c of Memorandum
of understanding
Ex.P4 : C/c of 7 tax invoices
Ex.P5 : Legal notice
Ex.P5(a) : Postal acknowledgement
Ex.P5(b) : Postal receipt
Ex.P6 : Reply notice
Ex.P7 : Compliant
LIST OF DOCUMENTS MARKED ON BEHALF OF THE DEFENCE:
Ex.D1 : Joint Memo XXVIII Addl. Chief Metropolitan Magistrate, Bengaluru.38 CC.No. 20277/2014
39 CC.No. 20277/2014 40 CC.No. 20277/2014 41 CC.No. 20277/2014 42 CC.No. 20277/2014 43 CC.No. 20277/2014 44 CC.No. 20277/2014 45 CC.No. 20277/2014 Judgment pronounced in the open court vide separate order.
ORDER The accused is found guilty for the offence punishable u/s 138 of N.I. Act.
Acting u/s 255(2) of Cr.P.C. the accused is convicted and sentenced to pay fine of Rs.14,15,000/- , in default shall undergo simple imprisonment for six months.
Out of fine amount of Rs.14,15,000/- a sum of Rs.14,14,000/- is ordered to be paid to the complainant towards compensation u/s 357(3) of Cr.P.C. and the balance amount of Rs.1,000/- shall be remitted to the State.
The bail bond executed by the accused shall stand cancelled.
Supply free copy of the judgment to the accused.
XXVIII A.C.M.M, Bangaluru.46 CC.No. 20277/2014
1. This case has been registered against the accused on the basis of the complaint filed by the complainant u/s 200 of Cr.P.C for the offence punishable u/s 138 r/w 142 of N.I. Act.
3. The gist of the complainant's case is that :
The complainant dealing in a business of purchase and sale of Diamond jewelries under the name and style of M/s Tradeline and accused acquainted with complainant for more than five years was dealing in purchase of jewelries. It is the case of the complainant that accused had purchased the jewelries on credit basis on different dates for an amount of Rs.1,20,00,000/-. It is also case of the complainant that accused have not repaid the said amount inspite of request and had entered into a Memorandum of Understanding with complainant on 22.11.2012 acknowledging and confirming the credit purchase of gold jewelries of Rs.1,20,00,000/-. For 47 CC.No. 20277/2014 the repayment of the above said amount of Rs.1,20,00,000/-, accused has issued in all six cheques in favour of the complainant as follows:-
Date Cheque No. Amount Bank Details
17.03.2014 351217 10,00,000/- The Hanumanthanagar
Coop Bank Ltd,
Hanumanthanagar,
Bangalore
24,03.2014 351216 10,00,000/- -
31.03.2014 480514 25,00,000/- Punjab National Bank,
KG Rd, B'lore
07.04.2014 480515 25,00,000/- -
14.04.2014 480516 25,00,000/- -
21.04.2014 480517 25,00,000/- -
In the instant case the complainant presented one of the cheque bearing No.480514 dt:31.03.2014 for an amount of Rs.25,00,000/- drawn on The Hanumanthanagar Cooperative Bank Ltd, Hanumanthanagar, Bangalore issued by the accused in discharge of his legal debt which on presentation through his banker Punjab National Bank, KG road, Bangalore on 13.05.2014 was dishonoured with the reason 'Funds Insufficient'. The complainant issued a notice on 23.06.2014 through RPAD requesting the 48 CC.No. 20277/2014 accused to repay the cheque amount within 15 days from the date of receipt of the said notice and even after the service of the notice accused neither paid the said amount nor replied to the said notice.
Accordingly, the complainant filed the complaint against the accused for having committed an offence punishable u/s 138 of N.I. Act on 26.07.2014.
3. In pursuance of the summons, the accused has appeared through Counsel and got enlarged on bail by executing necessary documents. The copy of the complaint was furnished to the accused, as required under law. As there was sufficient material, plea was recorded against the accused on 13.10.2014 and explained to the accused in her vernacular, for which the accused pleaded not guilty and claims to be tried.
4. In order to prove the case, the Proprietor of the complainant Company Sri. Sangeeta Jalan examined as PW1 and got marked Ex.P1 to 8. Then the statement u/s 313 Cr.P.C was recorded on 49 CC.No. 20277/2014 11.10.2019 wherein the incriminating evidence appeared against the accused was read over and explained which was denied by the accused. Accused examined herself as DW1 and got marked Ex.D1 on her behalf.
5. The learned Counsel for complainant argued that complainant dealing in a business of purchase and sale of Diamond jewelries under the name and style of M/s Tradeline and accused acquainted with complainant for more than five years was dealing in purchase of jewelries. It is the case of the complainant that accused had purchased the jewelries on credit basis on different dates for an amount of Rs.1,20,00,000/-. It is also case of the complainant that accused have not repaid the said amount inspite of request and had entered into a Memorandum of Understanding with complainant on 22.11.2012 acknowledging and confirming the credit purchase of gold jewelries of Rs.1,20,00,000/-. For 50 CC.No. 20277/2014 the repayment of the above said amount of Rs.1,20,00,000/-, accused has issued in all six cheques in favour of the complainant as follows:-
Date Cheque No. Amount Bank Details 17.03.2014 351217 10,00,000/- The Hanumanthanagar Coop Bank Ltd, Hanumanthanagar, Bangalore 24,03.2014 351216 10,00,000/- - 31.03.2014 480514 25,00,000/- Punjab National Bank, KG Rd, B'lore 07.04.2014 480515 25,00,000/- - 14.04.2014 480516 25,00,000/- - 21.04.2014 480517 25,00,000/- -
In the instant case the complainant presented one of the cheque bearing No.351217 dt:17.03.2014 for an amount of Rs.10,00,000/- drawn on The Hanumanthanagar Cooperative Bank Ltd, Hanumanthanagar, Bangalore issued by the accused in discharge of his legal debt which on presentation through his banker Punjab National Bank, KG road, Bangalore on 13.05.2014 was dishonoured with the reason 'Funds Insufficient'. The complainant issued a 51 CC.No. 20277/2014 notice on 23.06.2014 through RPAD requesting the accused to repay the cheque amount within 15 days from the date of receipt of the said notice and even after the service of the notice accused neither paid the said amount nor replied to the said notice. Accordingly, the complainant filed the complaint against the accused for having committed an offence punishable u/s 138 of N.I. Act on 26.07.2014. It is submitted by the complainant that the ingredients of Sec.138 and 142 are duly complied with and prayed to convict the accused.
6. The learned Counsel for accused contended that she had carried out the business of purchase of gold ornaments from the complainant and for which she has kept the Title Deeds of her property as security and also had issued 6 blank signed cheques. It is further contended by the accused that by misusing the said blank signed cheques the complainant had filed 6 cases including this case claiming an amount 52 CC.No. 20277/2014 of Rs.1,20,00,000/-. It is also contention of the accused that on 06.02.2015 a Joint Memo was executed between the complainant and the accused and in the said joint memo the complainant agreed to Rs.65,00,000/- for the said transaction and accordingly paid Rs.45,00,000/- through DD to the complainant and obtained the Title Deed of her property which was kept for security. It is further contention of the accused is that she had paid Rs.6,00,000/- through her Corporation Bank Account and had paid Rs.6,00,000/- to the complainant in different installments. Further it is the contention of the accused is that she is only due for an amount of Rs.8,00,000/- and she is ready to pay the same. Hence, it is prayed by the learned Counsel for the accused that there is no legal enforceable debt on as on the date of issuance of the cheque may kindly be acquitted.
7. Heard arguments and perused the material 53 CC.No. 20277/2014 placed on record.
8. On the basis of the above facts, the following points arise for my consideration:
1. Whether the complainant proves that the accused towards discharge of legal recoverable debt issued cheque bearing No.351217 dt:17.03.2014 for Rs.10,00,000/- drawn on Hanumanthanagar Cooperative Bank Ltd, Hanumanthanagar, Bangalore, in favour of complainant, on presentation for encashment it was returned as 'Funds Insufficient' and in spite of receipt of legal notice, the accused failed to pay the cheque amount within the statutory period and thereby the accused has committed an offence punishable u/s 138 of N.I. Act?
2. What order?
9. My findings on the above points are as under :
Point No.1: In the Affirmative Point No.2: As per final order, for the 54 CC.No. 20277/2014 following:
REASONS
10. Point No.1:- In order to prove the case, the Proprietor of the complainant Company Sri. Sangeeta Jalan filed affidavit by way of examination-in-chief and has reiterated the allegations made in the complaint on oath and got marked Ex.P1 to P.7. In the evidence of PW1 the complainant has deposed that complainant firm M/s Tradeline was involved in the business of the purchase and sale of Diamond jewelries and accused was purchasing the jewelries on credit basis. It is further deposed by PW1 that accused purchased jewelries on different dates and was due for an amount of Rs.1,20,00,000/- and for confirmation of the said debt entered into a Memorandum of Understanding with complainant on 22.11.2012 acknowledging the credit purchase of gold jewelries of Rs.1,20,00,000/-. It is further evidence of PW1 that for the repayment of the said amount of 55 CC.No. 20277/2014 Rs.1,20,00,000/-, accused has issued in all six cheques in favour of the complainant as follows:-
Date Cheque No. Amount Bank Details 17.03.2014 351217 10,00,000/- The Hanumanthanagar Coop Bank Ltd, Hanumanthanagar, Bangalore 24,03.2014 351216 10,00,000/- - 31.03.2014 480514 25,00,000/- Punjab National Bank, KG Rd, B'lore 07.04.2014 480515 25,00,000/- - 14.04.2014 480516 25,00,000/- - 21.04.2014 480517 25,00,000/- -
and when the said cheques were presented for encasement through the Punjab National Bank, KG road, Bangalore on 13.05.2014 were dishonoured with the reason 'Funds Insufficient'. In order to prove the said fact accused has produced document Ex.P1 the cheque bearing No.351217 dt:17.03.2014 for an amount of Rs.10,00,000/- drawn on The Hanumanthanagar Cooperative Bank Ltd, Hanumanthanagar, Bangalore. On perusal of the said document it is found that the said cheque is one of the cheque that has been issued by the accused in 56 CC.No. 20277/2014 discharge of her legal debt to the complainant with the signature Ex.P1(a) on the said cheque. The complainant has also produced Ex.P2 the memo issued by the bank disclosing that the said cheque was dishonoured for the reason 'fund insufficient'. Further in the evidence the complainant has also produced Ex.P4, 7 tax invoices disclosing the transaction regarding the purchase of jewelries by the accused with the complainant. This document clearly discloses that the accused was involved in purchasing the jewelries from the complainant on different occasions for which tax invoices have been raised by the complainant firm. The complainant has also produced Memorandum of Understanding Ex.P3 & Ex.P8 entered between the complainant and the accused. On careful perusal of the said document it clearly discloses that there was transaction regarding gold ornaments between complainant and accused in which accused was in due of Rs.1,20,00,000/- to the 57 CC.No. 20277/2014 complainant. It is pertinent to note that in the cross examination of PW1 the accused counsel have suggested the complainant that the complainant filed 6 cases against the accused for the said transaction for 6 different cheques that has been issued by the complainant. The said suggestion was admitted by the complainant that 6 cases regarding 6 different cheques issued by the accused for the discharge of legal debt has been filed against the accused. In the evidence of DW1 the said fact has been admitted by the accused that regarding the due of Rs.1,20,00,000/- gold ornament transaction with the complainant 6 cheques were issued and the complainant had filed 6 cases on the said cheques. In view of the same there is no dispute between the complainant and accused that accused was in due of Rs.1,20,00,000/- and for the discharge had issued 6 cheques which have been dishonoured and 6 separate cases have been registered by the complainant 58 CC.No. 20277/2014 against the accused. In the cross examination it is suggested to PW1 that both complainant and the accused has filed a joint memo on 06.02.2015 in the present case and in the said joint memo both parties have agreed for the outstanding due of Rs.65,00,000/- between the parties in all the 6 cases and on clearing of the said amount the outstanding due of the accused stands closed. It is very pertinent to note that PW1 admitted the said fact and also admitted the document joint memo on confrontation which was marked as Ex.D1. It is equally important to note that in the evidence of accused/DW1 she had deposed that on 06.02.2015 a joint memo has been filed by both the parties admitting the outstanding due to be Rs.65,00,000/-. In the instant case the said joint memo pertinent to all 6 cases has been marked as Ex.D1. On perusal of the said document it discloses that both the parties have filed a joint memo for all the 6 cases:-
59 CC.No. 20277/2014
1.CCNo.20276/2014
2.CCNo.20277/2014
3.CCNo.20279/2014
4.CCNo.20280/2014
5.CCNo.20282/2014
6.CCNo.20283/2014 Before the court contending that the complainant and the accused have settled the dispute for a sum of Rs.65,00,000/- out of the cheque amount in all the case of Rs.1,20,00,000/- and the accused agreed to pay the said amount of Rs.65,00,000/- in installments. The document Ex.D1 is very important document regarding the out standing due of Rs.65,00,000/- to be paid by the accused in discharge of his legal debt and liability to the complainant. In the cross examination of PW1 it is suggested to PW1 that after the execution of the joint memo between the parties in the present case the accused has paid an amount of Rs.45,00,000/-
through DD, Rs.5,90,000/- through RTGS and he is 60 CC.No. 20277/2014 only in due for an amount of Rs.8,00,000/-. The said fact regarding the due of Rs.8,00,000/- has been denied by the complainant /PW1 contending that accused is in due for payment of Rs.14,10,000/- till date. At this juncture it would be crystal clear if the cross examination DW1 is appreciated on the said fact. I would like to reproduce the relevant portion of cross examination of DW1 :
DgÀÆ ZÉPÀÄÌUÀ½UÉ ¸ÀA§A¢ü¹zÀAvÉ £ÁåAiÀiÁ®AiÀÄzÀ°è F ¥ÀæPÀgÀt ¸ÉÃj DgÀÄ ¥ÀæPÀgÀtUÀ¼ÀÄ £À£Àß «gÀÄzÀÞ zÁR¯ÁVgÀÄvÀÛªÉ. ¸ÀzÀj DgÀÆ ¥ÀæPÀgÀtUÀ¼À ZÉPÀÄÌUÀ½UÉ ¸ÀA§A¢ü¹zÀAvÉ £Á£ÀÄ 65 ®PÀë ªÉÆvÀÛPÉÌ Joint Memo ªÀ£ÀÄß ¦AiÀiÁð¢UÉ §gÉzÀÄPÉÆnÖgÀÄvÉÛãÉ. ¸ÀzÀj 65 ®PÀë ªÉÆvÀÛªÀ£ÀÄß JAlÄ PÀAvÀÄUÀ¼À°è ¥ÁªÀw¸ÀĪÀÅzÁV M¦àPÉÆrzÉÝ JAzÀgÉ ¸Àj. ¸ÀzÀj M¥ÀàAzÀzÀAvÉ £Á£ÀÄ 45 ®PÀë ºÀtªÀ£ÀÄß ¦AiÀiÁð¢UÉ ¥ÁªÀw ªÀiÁr G½zÀ 20 ®PÀë ºÀt PÉÆqÀ®Ä M¦àzÉÝ JAzÀgÉ ¸Àj. £ÀAvÀgÀ PÉêÀ® MAzÀÄ ®PÀë ºÀtªÀ£ÀÄß ªÀiÁvÀæ £Á£ÀÄ ¦AiÀiÁð¢UÉ ¢B15.10.2015 gÀAzÀÄ 50,000 ªÀÄvÀÄÛ ¢B17.11.2015 gÀAzÀÄ 50,000 ºÀt ¥ÁªÀw¹zÉÝ JAzÀgÉ ¸Àj. D£ÀAvÀgÀ £Á£ÀÄ ¦AiÀiÁð¢UÉ ¢B12.11.2016 gÀAzÀÄ J¸ï©L ¨ÁåAPï£À ZÉPï £ÀA.894117 ªÀÄÆ®PÀ 60 ¸Á«gÀ ºÀtªÀ£ÀÄß ¥ÁªÀw ªÀiÁrzÉÝÃ£É 61 CC.No. 20277/2014 JAzÀgÉ ¸ÁQëAiÀÄÄ ¸Àj JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. ¢B17.11.2016 gÀAzÀÄ J¸ï©L ¨ÁåAPï£À ZÉPï £ÀA.894119 ªÀÄÆ®PÀ 40 ¸Á«gÀ ºÀtªÀ£ÀÄß ¥ÁªÀw ªÀiÁrzÉÝB£É JAzÀgÉ ¸ÁQëAiÀÄÄ ¸Àj JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ.
CzÉà jÃw ¢B12,11.2016 gÀAzÀÄ J¸ï©L ¨ÁåAPï£À ZÉPï £ÀA.894126 ªÀÄÆ®PÀ 60 ¸Á«gÀ ºÀtªÀ£ÀÄß ¥ÁªÀw ªÀiÁrzÉÝB£É JAzÀgÉ ¸ÁQëAiÀÄÄ ¸Àj JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. CzÉà jÃw NEFT ªÀÄÆ®PÀ ¢B17.12.2016 gÀAzÀÄ 40 ¸Á«gÀ ºÀtªÀ£ÀÄß ¦AiÀiÁð¢UÉ ¥ÁªÀw ªÀiÁrgÀÄvÉÛÃ£É JAzÀgÉ ¸Àj. CzÉà jÃw NEFT ªÀÄÆ®PÀ ¢B19.12.2016 gÀAzÀÄ 1,00,000 ºÀtªÀ£ÀÄß ¦AiÀiÁð¢UÉ ¥ÁªÀw ªÀiÁrgÀÄvÉÛÃ£É JAzÀgÉ ¸Àj. CzÉà jÃw RTGS ªÀÄÆ®PÀ ¢B18,01,2017 gÀAzÀÄ 45 ¸Á«gÀ ºÀtªÀ£ÀÄß £À£Àß UÀAqÀ£À SÁvɬÄAzÀ ¦AiÀiÁð¢UÉ ¨ÁåAPï SÁvÉUÉ ªÀUÁð¬Ä¹zÉÝÃ£É JAzÀgÉ ¸Àj. CzÉà jÃw NEFT ªÀÄÆ®PÀ ¢B30.01.2017 gÀAzÀÄ 50 ¸Á«gÀ ºÀtªÀ£ÀÄß ¦AiÀiÁð¢UÉ ¥ÁªÀw ªÀiÁrgÀÄvÉÛÃ£É JAzÀgÉ ¸Àj. ¢B 07.09.2016 gÀAzÀÄ £Á£ÀÄ ¦AiÀiÁð¢UÉ 50 ¸Á«gÀ £ÀUÀzÀÄ ºÀtªÀ£ÀÄß ¥ÁªÀw¹zÉÝÃ£É JAzÀgÉ ¸Àj. CzÉà jÃw ¢B18.12.2016 gÀAzÀÄ £Á£ÀÄ ¦AiÀiÁð¢UÉ 40 ¸Á«ªÀ ºÀtªÀ£ÄÀ ß ¥ÁªÀw¹zÉÝÃ£É JAzÀgÉ ¸Àj. MlÄÖ ºÀt ¸ÉÃj¹ £Á£ÀÄ ¦AiÀiÁð¢UÉ PÉêÀ® gÀÆ.5,90,000 ºÀtªÀ£ÀÄß ªÀiÁvÀæ ¥ÁªÀw ªÀiÁrgÀÄvÉÛÃ£É JAzÀgÉ ¸ÁQëAiÀÄÄ ¸ÀjAiÀÄ®è JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ.
Á£ÀÄ ¦AiÀiÁð¢UÉ E£ÀÆß gÀÆ.14,10,000 ºÀt PÉÆqÀ®Ä 62 CC.No. 20277/2014 ¨ÁQ EgÀÄvÀÛzÉ JAzÀgÉ ¸ÁQëAiÀÄÄ ¸ÀjAiÀÄ®è, £Á£ÀÄ PÉêÀ® 8 ®PÀë ºÀt PÉÆqÀ®Ä ªÀiÁvÀæ ¨ÁQ EgÀÄvÀÛzÉ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. ¦AiÀiÁð¢UÉ PÉÆqÀ¨ÉÃPÁzÀ gÀÆ.14,10,000 ºÀtzÀ ¨ÁzÀsåvɬÄAzÀ vÀ¦à¹PÉƼÀÄîªÀ ¸À®ÄªÁV PÉêÀ® 7 ®PÀë ºÀt PÉÆqÀ¨ÉÃPÉAzÀÄ ¸ÀļÀÄî ¸ÁQë £ÀÄrAiÀÄÄwÛzÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è. "
On analyzing the evidence and admission of DW1 it is crystal clear that there is no dispute between the complainant and the accused that after filing the joint memo and settling the payment of due for Rs.65,00,000/- accused has paid Rs.45,00,000/- to the complainant and for the outstanding remaining Rs.20,00,000/- accused has made part payment of Rs.5,90,000/- through NEFT, RTGS. It is very pertinent to note that according to the complainant accused is still in due for payment of Rs.14,10,000/- but contend that she has made some payment in cash and the balance is only Rs.8,00,000/- to be paid to the complainant. It is very important to note that accused has not produced any cogent evidence and 63 CC.No. 20277/2014 relevant document to show that she has made cash payment of Rs.4,00,000/- to the complainant as suggested by the accused counsel in the cross examination of PW1. In the absence of cogent evidence and relevant document by the accused to prove that she has also made payment of Rs.4,00,000/- to the complainant cannot be considered and accepted. Per contra, the complainant by overwhelming evidence and by admission of the accused/DW1 proved that out of Rs.65,00,000/- settled amount as per joint memo accused has made a payment of Rs.45,00,000/- at one stretch and for the remaining Rs.20,00,000/- as paid only Rs.5,90,000/- on various dates mentioned above through NEFT and RTGS. Further the complainant has also proved that at present the accused is in due for an outstanding balance of Rs.14,10,000/- in all the remaining 5 cases Nos. 20277/2014, 20279/2014, 20280/2014, 64 CC.No. 20277/2014 20282/2014, 20283/2014 & including this case. In view of the same it is found that if accused makes a payment of Rs.14,10,000/- for the outstanding due in any one of 6 cases the entire due to be paid for the cheques transaction with the complainant would be cleared and closed.
12. In the cross examination of DW1 it is admitted by the accused that the cheque Ex.P1 and the signature Ex.P1(a) belongs to her. The only contention that has been taken by the accused is that the remaining portion of the cheque has been filled by the complainant as per their convenience and a a false case have been filed against her.
13. On this point I would like to refer the dictum of law reported in the judgment of Hon'ble Supreme Court:
2019 SAR 2446 (Criminal) 309 Supreme Court, ( Bir Singh v/s Mukesh Kumar).65 CC.No. 20277/2014
(E) Negotiable Instruments Act (26 of 1881), S, 138, 139 - Dishonour of cheque - Presumption as to legally enforceable debt - Rebuttal - Onus to rebut presumption that cheque issued in discharge of debt or liability is on accused. (Para 36) (G)Negotiable Instruments Act, (26 of 1881), Ss.138, 139 - Presumption as to legally enforceable debt - Rebuttal - Signed blank cheque- If voluntarily presented to payee, towards payment, payee may fill up amount and other particulars and it in itself would not invalidate cheque - Onus would still be on accused to prove that cheque was not issued for discharge of debt or liability by adducing evidence. (Para-38).
(H) Negotiable Instruments Act (26 of 1881), Ss, 138- Dishonour of cheque - Complainant can fill up amount or particulars in blank cheque. (Para 38).
(J)Negotiable Instrument Act 26 of 1881), Ss. 66 CC.No. 20277/2014 138, 139 - Dishonour of cheque - Absence of finding that cheque was not signed by accused or not voluntarily made over to payee- No evidence regarding circumstances in which blank signed cheque given to complainant - Cheque presumed to be filled in by complainant being payee in presence of accused, at his request or with his acquiescence- No change in amount, its date or name of payee- Subsequent filing in of an unfilled signed cheque is not alteration- Accused liable to be convicted. This ruling is applicable to the present facts and circumstances of the case since in para-36, 37, 38 & 40 the Hon'ble Supreme court has clearly laid down the dictum of law that the onus to rebut the presumption u/s 139 that the cheque has been issued in discharge of a debt or liability is on the accused and the fact that the cheque may be post dated does not absolve the drawer of the cheque of a penal consequences of sec.138 of the N.I Act. In the 67 CC.No. 20277/2014 instant case accused though contended that the disputed cheques have been obtained by the complainant for security and had been misused, but failed to prove the said fact by producing cogent evidence and relevant document. In view of the dictum of law laid down by the Hon'ble Supreme Court the contention that has been taken by the accused counsel in the cross examination that the disputed cheque Ex.P1 has been filled as per the convenience by the complainant cannot be taken into consideration and accepted. On perusal of the said ruling the Hon'ble Supreme Court had made it very clear that if a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill of 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 debt or liability by adducing evidence. It is further held that even blank 68 CC.No. 20277/2014 cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption u/s 139 of the Negotiable Instrument Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. It is also held that the provisions of Sec.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. In the instant case the accused has never denied the disputed cheque Ex.P1 and the signatures Ex.P1(a) on the said cheque and has never taken the contention that she was not due for payment of any due to the complainant. It is very pertinent to note 69 CC.No. 20277/2014 that the accused/DW1 had admitted the execution of the Memo of understanding Ex.P8 and the execution of the Joint Memo Ex.D1 produced. Further based on the admission of the accused the complainant has clearly established that in discharge of legal debt and liability the accused had issued the disputed cheque Ex.P1 with signature Ex.P1(a) on the said cheque and further settled the matter with the complainant by filing a joint memo Ex.D1 agreeing to pay outstanding due of Rs.65,00,000/-. In the instant case the complainant by overwhelming evidence has proved from the admission of DW1 that the accused has paid Rs.50,90,000/- out of Rs.65,00,000/- and he is still in due for the payment of Rs.14,10,000/-. As per the dictum of law laid down by Hon'ble Supreme Court in this ruling is squarely and aptly applicable to the present facts and circumstances of the case. From the above reasons and discussions accused has utterly failed to rebut the presumption 70 CC.No. 20277/2014 existing in favour of the complainant u/s 139 of the N.I Act and also failed to establish that the cheque Ex.P1 as never been issued by him in discharge of his legal debt and liability.
14. At this juncture I would also like to discuss the citation reported in AIR 2018 Hon'ble Supreme Court 3601 (T.P Murugan (Dead) Thr.Lrs.V Bojan AND Posa Nandhi Rep.Thr, POA Holder, T.P Murugan v. Bojan) In this ruling at para-8 the Hon'ble Supreme Court has laid down the dictum of law that u/s 139 of the N.I Act, once a cheque has been signed and issued in favour of the holder, there is statutory presumption that it is issued in discharge of a legally enforceable debt or liability by referring to K.N.Beena v/s Muniyappan and Another, (2001) 8 SCC 458, para-6 and Rangappa v/s Shrimohan (2010) 11 SCC 411, para 26 . It is further held that the presumption is a rebuttable one, if the issuer of the cheque is able to discharge the burden 71 CC.No. 20277/2014 that it was issued for some other purpose like security for a loan.
The dictum of law laid down by Hon'ble Supreme Court in this case is aptly applicable to the fact and circumstances of the present case since accused has utterly failed to rebut the presumption u/s 139 of N.I Act existing in favour of the complainant that the cheque Ex.P1 issued by her is not for discharge of any legal debt or liability. Per contra, the complainant has proved the case by overwhelming evidence to establish that the accused for the repayment of the due amount of the gold ornament transaction with the complainant had issued the disputed cheque in discharge of legal debt and liability. From all these reason it is crystal clear that accused is not entitle for any relief u/s 138 of N.I Act. At this juncture I would also like to discuss the ruling reported in:-
AIR 2019 SUPREME COURT 1876 72 CC.No. 20277/2014 Rohitbhai Jivanlal Patel v/s State of Gujarat and another (B) Negotiable Instruments Act (26 of 1881), Ss.118, 138 - Dishonour of cheque - Presumption in favour of holder - All basic ingredients of Ss.138, 118 and 139 are apparent on fact of record - Therefore, it is required to be presumed that cheques in question were drawn for consideration and complainant received it is discharge of an existing debt.
(D) Negotiable Instruments Act (26 of 1881), Ss.
138, 139 - Dishonour of cheque - Principles of presumption - Once presumption of existence of legally enforceable debt drawn in favour of complainant, onus is shifted on accused - unless onus is discharged by accused that preponderance of probabilities are tilting in his favour, doubt on case of complainant cannot be raised for want of evidence regarding source of funds for advancing 73 CC.No. 20277/2014 loan to accused.
On perusal of the ruling it is found that the ruling is applicable to the present facts and circumstances of the case. It is clearly held that an all basic ingredients of Sec.138, 118 and 139 are apparent on actual record then it is required to be presumed that the cheque in question was drawn for consideration and the holder of the cheque i.e a complainant had received the same in discharge of an existing debt. The onus shifts on the accused who has to establish by probable defence so as to rebut such a presumption but in this case as per the discussion made above the accused has utterly failed to produce probable defence that the cheque that has been issued for refund of the security deposit was not issued in discharge of legal debt and liability. It is clearly held in the said judgment that unless the onus is discharged by accused that preponderance of probabilities are tilting in his favour, doubt on case of 74 CC.No. 20277/2014 complainant cannot be raised.
15. It is the evidence of PW1 that after receiving the memo from the bank regarding dishonour of cheque issued Ex.P5 notice on 07.06.2014 through RPAD calling upon the accused to pay the cheque amount within 15 days from the date of receipt of the said notice and inspite of the service of the said notice accused failed to pay the cheques amount nor replied. In order to prove the said fact the complainant has produced the notice Ex.P5 dated:07.06.2014 and the postal receipt Ex.P5(b) and postal acknowledgment Ex.P5(a) which discloses that the notice has been send through RPAD to the accused and the same has been duly served to the accused address. It is pertinent to note that no where in the cross examination of PW1 accused has taken the contention that the notice was not been served to the accused and the signature on the acknowledge Ex.P5(a) does not belong to the accused. It is equally 75 CC.No. 20277/2014 important to note that though accused had lead her evidence but has not disputed the receipt of notice at any point of time.
16. At this juncture on this point regarding service of notice I would like to reproduce the principle laid down by the Hon'ble Apex Court of India in a decision reported in 2007 (3) Crimes 120 (SC) (C.C. Alavi Haji V/s Palapetty Muhammed & Anr), 2007 AIR SCW 3578 (C.C.Avavi Haji v/s Palapetty Muhammed & Anor).
On perusal the said ruling it is found that the Hon'ble Supreme Court held at para- 8 that :
Sec.138 of the act does not require that the notice should be given only by 'post', yet in a case where the sender as a dispatched the notice by post with correct address written on it, the principle incorporated in section 27 of the General Clause 76 CC.No. 20277/2014 Act 1897 (for short GC Act) could profitably be imported in such a case. It was held that in this situation service of notice is deemed to have been affected on the sendee unless he proves that it was not really served and that he was not responsible for such non service. Further at para -10 it is held that : The requirement of clause (b) of the provisions of Sec.138 of the Act stands complied with and cause of action to file a complaint arises on the expiry of the period prescribed in clause (c) of the said proviso to Sec.138 for payment by the drawer of the cheque. Nevertheless it would be without prejudice to the right of the drawer to show that he had now knowledge that the notice are brought to his address.
This ruling is aptly applicable to the present case 77 CC.No. 20277/2014 on the hand since the notice Ex.P5 has been duly served to the accused office as per the postal acknowledgment Ex.P5(a). It is pertinent to note that if notice sent through RPAD by correctly addressing drawer of the cheque, mandatory requirement of issue of notice in terms of (b) of proviso to u/s 138 of N.I. Act stands complied with. Therefore, sending legal notice to the correct address of the accused as per the dictum of law laid down in the above case is sufficient to establish that the complainant has complied the mandatory provision u/s 138(b) of N.I. Act.
17. The word 'unless contrary is proved' is discussed by the Hon'ble Apex Court in a decision reported in 2011 Crl.L.J 4647 (SC). It is observed that "the accused is under the obligation to prove his case in trial by leading cogent evidence that there was no debt or liability to the satisfaction of the Court". 'Unless contrary is proved' means the 78 CC.No. 20277/2014 presumption has to be rebutted by proof and not by a bare explanation which is mere plausible. The said fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that the reasonable man could act on the supposition that is exist. Therefore, unless explanation is supported by proof, the presumption created by the provisions cannot be said to be rebutted. In the instant case accused failed to rebut the presumption and prove his defence that on the date of issuing of cheque there are no legal debt and liability. Accordingly, I have no hesitation to arrive at the conclusion that accused has utterly failed to rebut the presumption.
18. In this case, the court on perusal of the materials placed before the court is satisfied that the mandatory requirements of Sec.138 and 142 of N.I. Act has been duly complied. It is evident that the cheque/Ex.P1 presented for encashment within the 79 CC.No. 20277/2014 validity time, notice Ex.P5 demanding the cheque amount and filing of complaint/Ex.P7 before the court after service of notice are within the period of specified by law.
19. On appreciation of entire evidence, this court is of the opinion that the accused miserably failed to challenge the oral and documentary evidence produced by the complainant. Accused has utterly fails to prove the fact that he has not issued cheques for discharge of legally enforceable debt. On the contrary, the complainant has proved through overwhelming evidence that the accused has issued Ex.P1/cheque for a sum of Rs.10,00,000/- towards discharge of legally enforceable debt and on presentation of the cheques, the same was dishonored for the reasons 'Funds Insufficient' and even after service of legal notice, the accused has not paid the cheques amount. Hence, in the considered view of this court, the complainant has proved that 80 CC.No. 20277/2014 the accused has committed an offence punishable u/s 138 of N.I. Act and admitted that she is only entitle for Rs.14,10,000/-. Hence, I answer the above point No.1 in the affirmative.
20. Point No.2:- From the material on record, it appears that the accused is aged about 53 years and house wife. Considering the age, avocation of accused and quantum of the cheque, if the accused is sent to jail, it would cause problem to the accused as well as to his family members. Having regard to the facts and circumstances, prevailing rate of interest in the nationalized Bank and litigation expenses, I proceed to pass the following:
ORDER The accused is found guilty for the offence punishable u/s 138 of N.I. Act.
Acting u/s 255(2) of Cr.P.C. the accused is convicted and sentenced to pay fine of Rs.14,15,000/- , in default shall undergo simple imprisonment for six 81 CC.No. 20277/2014 months.
Out of fine amount of Rs.14,15,000/- a sum of Rs.14,14,000/- is ordered to be paid to the complainant towards compensation u/s 357(3) of Cr.P.C. and the balance amount of Rs.1,000/- shall be remitted to the State.
The bail bond executed by the accused shall stand cancelled.
Supply free copy of the judgment to the accused. (Dictated to Stenographer directly on the Computer, taken print out corrected, signed by me and then pronounced in the open court this the 10th day of March, 2020) (ABDUL RAHIM HUSSAIN SHAIKH) XXVIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT :
PW1 : Smt. Sangeeta Jalan LIST OF WITNESSES EXAMINED ON BEHALF OF THE DEFENCE:
DW1 : Smt. Vijaya Venkatesh 82 CC.No. 20277/2014 LIST OF DOCUMENTS MARKED ON BEHALF OF THE COMPLAINANT:
Ex.P1 : Cheque
Ex.P1(a) : Signature of the accused
Ex.P2 : Bank memo
Ex.P3 : C/c of Memorandum
of understanding
Ex.P4 : C/c of 7 tax invoices
Ex.P5 : Legal notice
Ex.P5(a) : Postal acknowledgement
Ex.P5(b) : Postal receipt
Ex.P6 : Reply notice
Ex.P7 : Compliant
Ex.P8 : Memorandum of Understanding
LIST OF DOCUMENTS MARKED ON BEHALF OF THE DEFENCE:
Ex.D1 : Joint Memo XXVIII Addl. Chief Metropolitan Magistrate, Bengaluru.83 CC.No. 20277/2014
84 CC.No. 20277/2014 85 CC.No. 20277/2014 86 CC.No. 20277/2014 87 CC.No. 20277/2014 88 CC.No. 20277/2014 89 CC.No. 20277/2014 90 CC.No. 20277/2014 Judgment pronounced in the open court vide separate order.
ORDER The accused is found guilty for the offence punishable u/s 138 of N.I. Act.
Acting u/s 255(2) of Cr.P.C. the accused is convicted and sentenced to pay fine of Rs.14,15,000/- , in default shall undergo simple imprisonment for six months.
Out of fine amount of Rs.14,15,000/- a sum of Rs.14,14,000/- is ordered to be paid to the complainant towards compensation u/s 357(3) of Cr.P.C. and the balance amount of Rs.1,000/- shall be remitted to the State.
The bail bond executed by the accused shall stand cancelled.
Supply free copy of the judgment to the accused.
XXVIII A.C.M.M, Bangaluru.