Bangalore District Court
Smt. Savithri vs Smt. Sukanya on 1 January, 2019
C.C.NO.30823/2017
IN THE COURT OF THE XXII ADDL.CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
Present: Smt. HEMA PASTAPUR,
B.A., LL.B.,
XXII Addl. Chief Metropolitan Magistrate,
Bengaluru.
Dated this the 1st day of January 2019
C.C.No.30823/2017
Judgment under section 355 of Code of Criminal
Procedure
Complainant : Smt. Savithri,
w/o Nanjundappa,
Aged about 49 years,
Residing at No.41/1,
Hanumanth Nagar,
Annapurneshwari Layout,
Bengaluru - 91.
(By Shri Appaji, Advocate)
Vs
Accused : Smt. Sukanya,
w/o Late Nagraj,
Residing at No.10.1,
3rd cross, Byraveshwara Nagar,
Sunkadakatte,
Bengaluru - 560 091.
(By Smt. Nagarathnamma. K. N, Advocate)
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C.C.NO.30823/2017
JUDGMENT
That, the complainant has filed the private complaint under section 200 of Code of Criminal Procedure, for taking action against the accused for the offence punishable under section 138 of the Negotiable Instruments Act.
That, the brief facts of the present case are as under:-
1. That, the complainant and accused are well known to each other since three years and the accused in pursuance of said acquaintance in the month of October 2016 had availed a sum of Rs.3,50,000/- from the complainant and agreed to repay the same within one year from the date of its availment. That, when the complainant after the expiry of said period of one year had demanded the accused for repaying her said amount at that time the accused to discharge her legally enforceable debt had issued in favour of the complainant a cheque bearing No.446412 dated:-
02.11.2017 for a sum of Rs.3,50,000/- drawn on Syndicate Bank, Vishwaneedam branch, Sunkadkatte, Bengaluru - 91.
That, the complainant had presented the said cheque for encashment in Syndicate Bank, Vishwaneedam branch, 2 C.C.NO.30823/2017 Bengaluru and on 07.11.2017 the said cheque was returned with the shara as "Insufficient Funds". That, the complainant for aforesaid acts of the accused on 28.11.2017 had issued the legal notice to her through RPAD and on 01.12.2017 the same was returned with the shara as ''Unclaimed''. That, for all aforesaid reasons the complainant has constrained to knock the doors of justice.
2. That, on complaint being lodged by the complainant, this Court registered the case in concerned register and took the cognizance for the offence punishable under Section 138 of the Negotiable Instruments Act and thereafter, recorded the sworn statement of the complainant and after satisfying with the materials placed on record registered the case against the accused in Register No. III and issued summons to her. That, the accused in pursuance of said summons appeared before this Court through her learned counsel and she was enlarged on bail. That, the substance of accusation of the accused has recorded and read over her in language known to her and she has not pleaded guilty and claimed to tried. That, after completion of the complainant side 3 C.C.NO.30823/2017 evidence the statement of the accused as contemplated under section 313 of the Code of Criminal Procedure, has recorded and read over her and she denied all incriminating evidence appearing against him.
3. That, I have heard the arguments and perused the materials placed on record. That, the following points arise for My consideration and determination:-
1. Whether the complainant has proved that, the accused to discharge her legally enforceable debt had issued in her favour a Cheque bearing No.446412 dated:-02.11.2017 for a sum of Rs.3,50,000/- drawn on Syndicate Bank, Vishwaneedam, Sunkadakatte branch, Bengaluru?
2. Whether the complainant has further proved that, the said cheque was dishonoured as "Funds Insufficient" and thereby the accused has committed the offence punishable under Section 138 of the Negotiable Instruments Act?
3. What order?
4. That, the complainant to substantiate her aforesaid contentions has deposed herself as PW1 and got marked the documents at EXs.P1 to 5 and closed her side. 4
C.C.NO.30823/2017 That, the accused has not led either oral or documentary evidence on her behalf.
5. That, My answer to the aforesaid points are as under:-
Point No.1 :- In the AFFIRMATIVE Point No.2 :- In the AFFIRMATIVE Point No.3:- As per the final order for the following:-
REASONS
6. Point No.1:- It is pertinent to note here that, the complainant in her complaint, in her examination - in - chief and in Legal notice - EX.P3 has specifically contended that in the month of October 2016 the accused had availed form her a sum of Rs.3,50,000/-. It is pertinent to note here that, the complainant in her cross - examination in page No.1 has specifically deposed that she was working in CO - Operative Bank and at that time she was getting Rs.8,000/- per month as a salary and to probabalise her said contention has mainly relied upon the EX.P5 - Letter issued by the Kaveri 5 C.C.NO.30823/2017 Credit Co - Operative Society, Bengaluru, dated:-09.08.2016. It is pertinent to note here that, the said Society had issued the EX.P5 contending that in said Society the complainant form 09.06.1997 to 30th June, 2016 - 17 was working as a Clerk cum Cashier and due to her family problems she left her said job and in said Society she was getting Rs.8,000/- per month as a salary.
It is pertinent note here that, the accused though, has cross - examined the complainant in length but, even has not made a suggestions that she had not availed any loan amount from her and she is not having the capacity to pay her such a substantial amount. In other words, the accused has not taken any specific defense. It is pertinent to note here that, from the said conduct of the accused it clearly appears that in the month of October 2016 she had availed a sum of Rs.3,50,000/- from the complainant.
It is pertinent to note here that, in present case from perusal of EX.P4 - RPAD - the Legal notice issued to the accused was returned with the shara as ''Unclaimed". It is pertinent to note here that, the accused in her statement 6 C.C.NO.30823/2017 recorded by this Court under Section 313 of Code of Criminal Procedure, dated:-10.08.2018 and in cross - examination of the complainant has not taken a defense that she had not received the said notice. It is pertinent to note here that, it is well settled law that the statutory notice issued to the accused under Section 138 of the Negotiable Instruments Act, returns with the sharas as absent, door locked, shop closed, intimation delivered, unclaimed, etc., the presumption arises that the complainant had dispatched the said notice to the correct address of the accused. It is pertinent to note here that, from perusal of EX.P4 it clearly appears that the complainant had dispatched the same to the correct address of the accused. It is significant to note here that, if the accused fails to give any reply to the said statutory notice then the presumption arises that the accused has accepted the complainant's version. It is pertinent to note here that, in present case from the conduct of the accused it clearly appears that she has accepted the complainant's version. It is pertinent to note here that, the 7 C.C.NO.30823/2017 complainant has convincingly proved the existence of legally recoverable debt.
7. It is specific contention of the complainant that, the accused to discharge her legally enforceable debt had issued in her favour a Cheque bearing No.446412 dated:-
02.11.2017 for a sum of Rs.3,50,000/- drawn on Syndicate Bank, Vishwaneedam, Sunkadakatte branch, Bengaluru -
EX.P1. It is significant to note here that, the accused though, has cross - examined the complainant in length but, failed to elicit anything worth. It is pertinent to note here that, the accused has not disputed her signature on EX.P1. It is pertinent to note here that, as the signature in the cheque is admitted by the accused, then the presumption envisaged under section 118 of the Negotiable Instruments Act, can legally be inferred that the cheque was made over to the drawer for consideration on the date which the cheque bears. It is to be noted here that, section 139 of the Negotiable Instruments Act, enjoins on the court to presume that the holder of the cheque is received it for discharge for some debt or liability. It is pertinent to note here that, in 8 C.C.NO.30823/2017 instant case the presumptions envisaged in sections 118 and 139 of Negotiable Instruments Act, arises in favour of the complainant. It is pertinent to note here that, in view of My above all findings and without much discussion I hold that, the complainant has convincingly proved that the accused to discharge her legally enforceable debt had issued in her favour the EX.P1. In view of the same, point No.1 is answered in the AFFIRMATIVE.
8. Point No.2:- It is specific contention of the complainant that, she presented the EX.P1 for encashment in Syndicate Bank, Vishwaneedam branch, Bengaluru and on 07.11.2017 the same was returned with the shara as ''Funds insufficient''. It is pertinent to note here that, the complainant to substantiate her aforesaid contentions in her evidence has got marked the Cheque return memo issued by the said Bank at EX.P2. It is significant to note here that, from perusal of EX.P2 it clearly appears that the EX.P1 was dishonoured as ''Funds Insufficient''.
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C.C.NO.30823/2017
9. It is to be noted here that, at this juncture I have gone through the provisions of the section 146 Negotiable Instruments Act and which contemplates as under:-
Bank's slip prima facie evidence of certain facts:- The Court shall, in respect of every proceeding under this Chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonor or such cheque, unless and until such fact is disproved.
It is pertinent to note here that, in the instant case the accused has failed to rebut the presumptions envisaged in Section 146 of the Negotiable Instruments Act. It is to be noted here that, in view of My above findings and without much discussion I hold that, the complainant has convincingly proved that the accused has committed the offence punishable under section 138 of Negotiable Instruments Act. In view of the same, point No.2 is answered in the AFFIRMATIVE.
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C.C.NO.30823/2017
10. Point No.3:- That, as discussed on points No.1 and 2, I proceed to pass the following:-
ORDER That, acting under section 255(2) of Code of Criminal Procedure, the accused is convicted for the offence punishable under section 138 of the Negotiable Instruments Act.
That, the accused shall deposit a fine amount of Rs.3,50,000/- and if she fails to deposit the said fine amount, then she shall undergo a simple imprisonment two months.
That, on deposit of fine amount of Rs.3,50,000/-, Rs.3,48,000/- shall be paid to the complainant as a compensation as provided under section 357(1) of Code of Criminal Procedure and Rs.2,000/- shall be remitted to the State exchequer.
That, the Office is to furnish free copy of this Judgment to the accused forthwith. (Typed and corrected by me and the pronounced in the open Court on this the 1st day of January 2019) 11 C.C.NO.30823/2017 (Hema Pastapur) XXII Addl. Chief Metropolitan [ Magistrate, Bengaluru [[ � ANNEXURE List of witnesses examined on behalf of the complainant [ PW1 : Smt. Savithri w/o Nanjundappa. List of documents marked on behalf of the complainant EX.P1 : Original Cheque;
EX.P1(a) : Signature of the accused;
EX.P2 : Cheque return memo;
EX.P3 : Legal notice;
EX.P3(a) : Postal receipt;
EX.P4 : RPAD and
EX.P5 : Letter issued by the Kaveri Credit
Co - Operative Society, Bengaluru.
List of witnesses examined on behalf of the accused Nil List of documents marked on behalf of the accused Nil XXII Addl. Chief Metropolitan Magistrate, Bengaluru 12