Bangalore District Court
W/O.Krishna Chaitanya. P vs D/O. Mohamed Kasim on 10 March, 2020
IN THE COURT OF XXII ADDL. CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU
DATED THIS THE 10TH DAY OF MARCH, 2020
PRESENT
SMT. JYOTHISHREE RAMAGOWDA PATIL
B.A., LL.B., (Spl)
XXII ADDL. CMM., BENGALURU.
CASE NO. C.C.NO.12150/2017
Smt. Ashwini Vijay
COMPLAINANT W/o.Krishna Chaitanya. P
Aged about 30 years
Works at HCL Company, Bengaluru
R/at. Door No.4, 14th C Cross,
Agarahara Dasarahalli,
Magadi Main Road,
Bangalore-560079.
Miss. Faheema Mohamed Kasim
ACCUSED D/o. Mohamed Kasim
Aged about 28 years,
Business
Door No.63/15, 3rd Cross,
Gopalapura,
Magadi Road Cross,
Bangalore-560023.
Also at:
C/o. Sri. Hussain @ Baba,
No.3/26, 2nd Cross, E Street,
Near Ayyappaswamy Temple,
Magadi Main Road,
Bangalore-560 023.
2 C.C.No.12150/2017
OFFENCE U/S.138 of Negotiable Instruments Act.
PLEA OF THE Pleaded not guilty.
ACCUSED
FINAL ORDER Accused is convicted.
(JYOTHISHREE RAMAGOWDA PATIL)
XXII ADDL. C.M.M., BENGALURU.
JUDGMENT
The complainant has filed the complaint under Section 200 of Cr.P.C., against the accused for the offence punishable under Section 138 of Negotiable Instruments Act.
2. The brief facts of the case of the complainant are that;
The complainant and accused are known to each other. The accused in the month of February 2015 approached the complainant seeking loan of Rs.10,00,000/- for the import and export textile business. The complainant was knowing the accused well and on executing hand loan agreement on 2 3 C.C.No.12150/2017 26.03.2015, the complainant lent loan of Rs.10,00,000/-. The accused to discharge her liability issued cheque bearing No.000002 for a sum of Rs.10,00,000/- dated 03.11.2016 and drawn on Kotak Mahindra Bank, Modi Hospital Road Branch, Bengaluru. The complainant presented the cheque for encashment through her banker HDFC Bank, Nagarabhavi Branch, Bengaluru on 30.01.2017. The cheque came to be dishonoured for reasons funds insufficient on 31.01.2017. The complainant issued notice to the accused on 15.02.2017. The notice was returned as no such number in 3rd cross and return to sender. The accused has not repaid the amount. Hence the complaint is filed.
3. The sworn statement of the complainant was recorded. The criminal case was registered against the accused. The accused appeared on receipt of summons and got enlarged on bail. The Substance of Accusation was read over and explained to the accused for which she pleaded not guilty and claimed to be tried.
3 4 C.C.No.12150/2017
4. The complainant is examined as PW.1 and got marked the documents from EXs.P1 to EX.P9. The statement of accused under Section 313 of Cr.P.C., is recorded. There is no defence evidence.
5. Heard the arguments.
6. The points that arise for my consideration are as under;
1) Whether the complainant proves that the accused has issued a cheque bearing No.000002 for a sum of Rs.10,00,000/- dated 03.11.2016 drawn on Kotak Mahindra Bank, Basaveswaranagara Branch, Bengaluru, towards discharge of legally enforceable liability?
2) Whether the complainant further proves that when she presented the said cheque for encashment, it returned with an endorsement as "Funds Insufficient" and despite receipt of notice also the accused has not complied and thereby committed an 4 5 C.C.No.12150/2017 offence punishable under Section 138 of Negotiable Instruments Act?
3) What Order?
7. My answers to the above points are as follows:
Point No.1: In the Affirmative. Point No.2: In the Affirmative. Point No.3: As per the final order for the following:-
REASONS
8. Point Nos.1 and 2: The offence under Section 138 of Negotiable Instruments Act is regulated by the presumption under Section 118 and 139 of Negotiable Instruments Act. The cheque has to be presented within its stipulated time and if the cheque is dishonoured the notice is to be issued to the drawer of the cheque within thirty days from such dishonour. If the drawer fails to make payment within 15 days from the date of receipt of notice it attracts the offence. 5 6 C.C.No.12150/2017
9. Herein the present case the complainant has produced the cheque as per EX.P1, memo as per EX.P2. The legal notice as per EX.P3. The notice is returned as no such address and returned as per EX.P4. The case of the complainant is based on EX.P6 the loan agreement.
10. The accused has taken the defence of complete denial of case. It is also the defence of the accused that the complainant is charging exorbitant interest and doing money lending business. I have carefully perused the defence taken by the accused during the cross-examination of PW.1 as suggestions were put to PW.1 regarding lending of Rs.50,000/- for the purpose of sale of artificial gold ornaments. It is the case of the accused that she has paid the entire amount of Rs.50,000/- and the cheque book was taken at the time of opening of bank account. It is the defence of the accused that the signature on the cheque is also forged one. The complainant has also produced the voice recording CD as per EX.P7 and P8 and the written conversation is also produced as per EX.P9. 6 7 C.C.No.12150/2017
11. As under Section 139 of the Act there is a legal presumption that the cheque was issued for discharging an antecedent liability. It is open to the accused to adduce evidence and to rebut the presumption. Herein the present case the complainant has deposed that she has taken money from her mother in law and as well as from her own source. The complainant is also relying on the loan agreement dated 26.03.2015. The cheque is dated 03.11.2016. The learned Advocate for the complainant relied on the Judgment of the Hon'ble High Court in Crl.R.P.No.48/2019 along with clubbed petitions dated 04.12.2019 and submitted that as per the well settled principles of law Section 139 of the Act introduces an exception to the general rule as to the burden of proof and shift the onus on the accused to prove by cogent evidence that there was no debt or liability. Mere denial or rebuttal by the accused is not enough. As per the defence of the accused the cheque was taken at the time of opening of an account. But as per the Judgment of the Hon'ble Supreme Court in the case of Bir Singh V/s Mukesh Kumar reported in 2019 4 SCC 197 even a blank signed cheque is 7 8 C.C.No.12150/2017 handed over and the holder of the cheque is entitle to fill up the details and present it. The presumption under Section 139 of the Negotiable Instruments Act is a presumption of law as distinguished from presumption of facts. The accused has to adduce evidence showing the reasonable possibilities of the non existence of the presumed fact. Herein the present case the accused has not entered into witness box.
12. The court has to presume that the cheque had been issued for discharging debt or liability. Mere denial or rebuttal by the accused was not enough. The accused has to prove by cogent evidence that there was no debt or liability.
13. It is the accused who has to explain how the cheque in dispute has come into the hands of complainant. Herein the present case the accused has merely taken the defence that she had transaction only for Rs.50,000/-. But nothing has been produced on behalf of the accused to show that there was only a transaction for Rs.50,000/-. The onus to rebut the presumption is on accused. The Hon'ble Apex Court has held in the case of Bir Singh V/s Mukesh Kumar reported in 8 9 C.C.No.12150/2017 AIR 2019 Supreme Court 2446 held that the object of Section 138 of Negotiable Instruments Act is to infuse credibility to Negotiable Instruments including cheques and to encourage and promote the use of Negotiable Instruments including cheques in financial transaction. The Penal provision of Section 138 of Negotiable Instruments Act is intended to be a deterrent to callous issuance of Negotiable Instruments such as cheques without serious intention to honour the promise implicit in the issuance of the same. Therefore it is evident that the cheque issued by the accused is for consideration and also for discharge of debt or liability. As per the rules of presumption the accused has failed to rebut the presumption.
14. Herein I rely on the Judgment reported in AIR 2019 Supreme Court 1876 rendered by the Hon'ble Supreme Court of India in the case of Rohit Bhai Jeevanlal Patel V/s State of Gujarath and Another wherein it is held that when all basic ingredients of Section 138, 118 and 139 are apparent on the face of record it is required to be presumed that cheque in question was drawn for consideration and 9 10 C.C.No.12150/2017 complainant received it in discharge of an existing debt. Here in the present case the complainant has shown that she received the cheque for enforceable liability from the accused. The accused has not shown sufficient material to rebut the presumption which is drawn in favour of complainant. The accused has failed to disprove the presumption through her oral and documentary evidence. Hence the case of the complainant is acceptable and the accused is liable for conviction. Hence Points No.1 and 2 are answered in the AFFIRMATIVE.
15. Point No.3:- For the aforesaid reasons I proceed to pass the following:
ORDER Acting under Section 255(2) of Cr.P.C., the accused is hereby convicted and sentenced for the offence punishable under Section 138 of Negotiable Instruments Act and directed to pay compensation/fine of Rs.10,75,000/- (Ten Lakhs 10 11 C.C.No.12150/2017 Seventy Five Thousand rupees only) to the complainant.
In the total compensation/fine amount a sum of Rs.2,000/- (Two Thousand rupees only) shall be paid to the State as fine.
In default of the aforesaid compensation/fine amount the accused shall undergo simple imprisonment for six months.
(Dictated to the stenographer in computer, typed by him and corrected by me and then pronounced by me in the Open Court this the 10th day of March 2020).
(JYOTHISHREE RAMAGOWDA PATIL) XXII ADDL. C.M.M., BENGALURU.
ANNEXURE Witnesses examined for the complainant:
PW.1 : Smt. Ashwini Vijay
Witnesses examined for the defence:
-Nil-
Documents marked for the complainant:
EX.P1 : Cheque; 11 12 C.C.No.12150/2017 EX.P1(a) : Signature of the accused; EX.2 : Cheque Return Memo; EX.P3 : Legal Notice dated 15.02.2017; EX.P3(a) & (b) : Postal Receipts; EX.P4 & 5 : RPAD Covers; EX.P6 : Agreement dated:26.03.2015; EX.P7 & 8 : Two CD's and EX.P9 : Voice Recording details; Documents marked for the defence: -Nil- (JYOTHISHREE RAMAGOWDA PATIL) XXII ADDL. C.M.M., BENGALURU. 12