Bangalore District Court
Smt. S.M. Shusheela vs Smt. Sridevi .V @ Sridevi Arun on 10 October, 2018
1 C.C.NO.12951 OF 2017
IN THE COURT OF THE XII ADDL. CHIEF METROPOLITAN
MAGISTRATE, AT BENGALURU
Dated this the 10th Day of October 2018
Present: Sri. Rajkumar .S.Amminbhavi., B.Com., LLB (Spl)
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
C.C.No. 12951/2017
Complainant: Smt. S.M. Shusheela
W/o. A.M. Venkatesh
Aged about 55 Years
Proprietor of Sri. Siddivinayaka
Jewellers, No.2071/1, MIG 3rd
Phase, 16th "B" Cross
Yelahanka New Town
Bengaluru-560 064.
Represented by GPA holder
A.M. Venkatesh.
(By V.D.Raviraj., Adv)
- Vs -
Accused: Smt. Sridevi .V @ Sridevi Arun
W/o. Arun, Aged about 35 Years
R/at. No.36, "Sri Ranga" 1st Main,
2nd A Cross, GKVK Post,
Chikkabommasandra
Yelahanka, Bengaluru-560 064.
(By. Mahesh .K.V., Adv)
Offence complained of: U/s. 138 of the Negotiable
Instruments Act
Plea of the accused: Pleaded not guilty
Final Order: Accused is Convicted
2 C.C.NO.12951 OF 2017
Date of order: 10.10.2018
******
JUDGMENT
This is a complaint under Sec.200 of Cr.PC against the accused for the offence punishable under Sec.138 of the Negotiable Instruments Act.
2. The facts of the complaint in brief are that, the complainant is the proprietor of Sri. Siddivinayaka Jewellers and due to her ill-health, she is not in position to personally look after all the affairs of the said proprietary concern and on that account, she had executed General Power of Attorney on 10.03.2016 appointing her husband Sri. A.M. Venkatesh as her agent including attending the complaint, since he is well aware of all the transaction pertaining to the proprietory concern and further, the complainant is doing business of manufacture and sale of Gold and Silver ornaments/articles and also sale of precious stones and the accused and the complainant are known to each other out of the business transactions for quite some time and subsequently, the accused has purchased Gold Chain weighing 57-19 Gms worth of Rs.1,60,750/- vide Bill No.1558, dated: 12.12.2015 from the complainant and the accused for payment of the said amount issued cheque bearing No.954097, dated:
3 C.C.NO.12951 OF 201712.12.2015 drawn on Panjab National Bank, Yelahanka Branch, Bengaluru in favour of the proprietor concern of the complainant towards the payment of bill amount with respect to purchase the jeweleries from the complainant in favour of the complainant and assured that, the said cheque would be honoured and as per the assurance made by the accused, the complainant has presented the said cheque for encashment through her banker i.e.,M/s.
Indian Bank, Yelahanka New Town Branch, Bengaluru, but it was dishonoured with an endorsement that, "Funds Insufficient" on 18.12.2015 and same has been informed to the accused and at that time, the accused has apologized her inconvenience with respect to honour the cheque and requested the complainant to present it and it would be honoured and accordingly, as per the assurance made by the accused, the complainant has once again present it cheque in question and same is dishonoured with an endorsement as "Drawer Signature Differs" and thereafter, the complainant has informed the said fact to the accused, but the accused did not responded the same. Hence, the complainant had got issued the legal notice on 22.01.2016 through her counsel by RPAD to his address calling upon her to repay the said borrowed loan amount within 15 days from the date of receipt of this legal notice and it was duly served upon her. Despite service of the legal notice, the accused neither repaid the cheque amount nor reply to the 4 C.C.NO.12951 OF 2017 legal notice issued by the complainant. Hence, the complainant had constrained to file a complaint against the accused for the offence punishable under Section 138 of N.I. Act., which is well within time.
3. After recording of the sworn statement of the complainant and complaint is register in criminal case register and after issuance of summons to the accused, pursuant to the summons the accused had appeared before this Court through her counsel and enlarged on bail. The substance of accusation was recorded and read over to the accused in her vernacular. She pleaded not guilty. Hence, claims for trail.
4. In order to prove the case of the complainant, GPA holder of the complainant got himself examined as PW.1 & got 8 documents marked as Ex.P.1 to Ex.P.8 and during the course of cross of PW-1, the counsel for the accused has confronted estimated bill to the PW-1 and same is admitted by the PW-1 and in that regard, which is marked as Ex.D1 and the statement of accused under Section 313 of Cr.P.C., was recorded and the accused has denied the incriminating statement against her and the accused herself examined as DW-1 and she has confronted PW-1 and marked as Ex.D1 in support of her defence and after completion of the defence evidence, the matter was posted 5 C.C.NO.12951 OF 2017 for arguments.
5. Heard arguments.
6. The following points arise for my determination;
1. Whether the complainant proves that the accused had issued Cheque bearing No.954097, dated:12.12.2015 for a sum of Rs.1,60,750/- drawn on Punjab Naational Bank, Yelahanka Branch, Bengaluru, for discharge of the amount and when the said cheque presented for encashment, it was dishonoured with an endorsement "Funds Insufficient" on 18.12.2018 " Drawer siganture differs" on 22.12.2015 and after issuance of the legal notice he fails to repay the said amount and Thereby, the accused have committed offence punishable U/s. 138 N.I.Act?
2. What order ?
7. My answer to the above points are;
Point No.1 : In the Affirmative
Point No.2 : As per final order for the
following;
6 C.C.NO.12951 OF 2017
REASONS
8. POINT NO.1: On perusal of the evidence of PW-1 he has reiterated as per the averments made in the complaint and he has got marked 8 documents namely, the Notarized copy of the GPA dated:08.03.2016 which is marked as Ex.P1, cheque which is marked as Ex.P2, the signature of the accused therein which is marked as Ex.P2(a), two bank endorsement which are dishonoured with an endorsement as "Funds Insufficient" and "Drawer signature differs"
which are marked as Ex.P3 and Ex.P4 respectively, the office of the legal notice which is marked as Ex.P5, Postal receipt which is marked as Ex.P6, postal acknowledgment which is marked as Ex.P7, the invoice book which is marked as Ex.P8 and therein relevant entry which is marked as Ex.P8(a).
9. During the course of cross of PW-1 he has deposed that, the complainant who being the proprietory of Sri. Siddivinayaka Jewellers and the said shop is running the for the last 15 years. He deposed that, himself and his wife i.e., present complainant are look after affairs of the said shop. He deposed that, the accused who being their customer and thereby, the accused is well known to them. He deposed that, the accused has specifically stated that, 7 C.C.NO.12951 OF 2017 her husband being a Government Employee. He do not know whether what was source of income of the accused. He do not know whether in which office husband of the accused was and is working and he do not know whether how many family consists of the accused family. He deposed that, Ex.P8 which is bill book which is contain No.1501 to 1600 and therein relevant bill No.1558 which is marked as Ex.P8(a) which is issued by him to the accused with respect to the purchase the golden ornaments and as per the instruction and advise of the accused, he has wrote in the Ex.P8(a) as Savithri/Sridevi. He deposed that, the accused has issued fully filled-up cheque in question. During the course of his cross-examination, the counsel for the accused has confronted the estimated bill which is pertain to Sri. Sidivinayaka Jewelers and wherein amount mentioned that an amount of Rs.1,11,987/- on 12.12.2015 and same has been admitted by the PW-1 and which is marked as Ex.D1. It is true that, he has not produced any documents except Ex.P8 with respect to golden ornaments purchased by the accused from their shop. He denied the suggestion that, the accused has purchased the golden ornaments from their shop at that time, the accused has issued chdque in question for the security purpose and the accused has paid the amount towards purchase the golden ornaments and even after repayment of the purchase amount, the complainant has 8 C.C.NO.12951 OF 2017 failed to return the cheque in question and same is misused and filed false complaint with an intention to get wrong full gain.
10. During the course of defence evidence, the accused herself examined as DW-1 by way of filing chief affidavit, wherein she has specifically stated that, there was a earlier transaction between herself and the complainant and she was clear the the amount of Rs.1,11,987/- and after clear the amount, the complainant has failed to return the cheque in question. She has deposed that, even after clearing the amount, the complainant without reasons hold her cheque and subsequently, the complainant has stated that, clear the amount due from one Savithri, but the transaction between Savithri and the complainant was related to her and she was approached the complainant to return the said cheuqe, but the complainant has failed to return the same and same is misused and filed false complaint against her with an intention to get wrong full gain. Further, she has stated that, as per the Ex.D1 she has clear the amount. She deposed that, the complainant has not specifically stated in his legal notice, complaint and examination-in-chief that, one Savithri who had due amount in question. Hence, for all other reasons, she prays for acquit her from the case in hand.
9 C.C.NO.12951 OF 201711. During the course of cross of DW-1 she has specifically deposed that, she being a B.A. graduate and she know the present complainant, since she had purchased the golden ornaments in the year 2015 and thereby, she know the complainant. She deposed that, she was purchased the golden ornaments which is worth of Rs.1,11,000/-. She denied the suggestion that, she has purchased the golden ornaments which is worth of Rs.1,60,750/-. It is true that, mobile number No.9916940810 mentioned in Ex.P8(a) is pertain her mobile number, but the signature found on the Ex.P8(a) is not her own signature. It is true that, cheque in question pertain to her own bank account i.e., Punjab National Bank and cheque number mentioned in Ex.P8(a) is pertain to her own bank account cheque. She denied the suggestion that, signature found on the Ex.P8(a) and Ex.D1 are one and the same. It is true that, she has purchased the golden ornaments and in this regard, she had issued cheque in question. It is true that, signature found on the Ex.P7 is her own signature. She denied the suggestion that, she has purchased the golden ornaments and for payment of the due amount, she had issued cheque in question to the complainant.
12. On perusal of the averments made in the complaint and also documents produced by the respective parties to 10 C.C.NO.12951 OF 2017 the proceedings, it is an admitted fact that, even after issuance of the legal notice by the complainant to the accused prior to filing of the said complaint which was duly served, the accused has not gave any reply notice. Therefore, prior to filing of the said complaint the complainant had complied all the necessary ingredients under Section 138 of N.I.Act. There is no dispute that, Ex.P2 cheque belonging to her own bank account, but she has denied the signature found on the Ex.P2(a) is not her own signature.
13. It is case of the complainant is that, the complainant being a proprietor of Sri. Siddivinayaka Jewellers and she has executed GPA in favour of her husband with respect to look after the affairs of the business concern and to conduct the present case in hand. Further, the accused has purchased the golden ornaments which is worth of Rs.1,60,750/- as per the Ex.P8 and therein Vide Bill No.1558 dated:12.12.2015 and for payment of the said amount, the accused has issued cheque in question in favour of the complainant and assured that, the said cheque would be honoured on its presentation and after presentation of the said cheque, it was dishonoured "Funds Insufficient" and same has been informed to the accused and at that time, the accused has requested his inability to maintain the sufficient funds in her bank 11 C.C.NO.12951 OF 2017 account and requested him to present it once gain and as per the request of the accused, the complainant has presented the said cheque for encahsment and once again it was returned with an endorsement as "Drawer signature differs" and same has been informed to the accused, but the accused not responded the same and thereby, the complainant has got issued legal notice through his counsel and same has been duly served upon the accused and after receipt of the accused has failed to repay the due amount i.e., Ex.P2 amount and thereby, the complainant has filed the present complaint. Further, to substantiate her case, PW-1 has produced the Ex.P8 and on perusal of the Ex.P8 and wherein Vide bill No.1558 which is marked as Ex.D8(a), dated:12.12.2015 and wherein specifically mentioned that, the accused has purchased the golden ornaments an amount of Rs.1,60,750/- and number of the cheque in question is specifically mentioned and so also mobile number of the accused was also mentioned in the Ex.P8(a) and same has not been disputed by the accused. Therefore, an adverse inference is to be drawn that, the accused has purchased the golden ornaments and for payment of the due amount, she has issued cheque in question.
14. On the other hand, the accused has taken defence during the cross of PW-1 and during the course of defence 12 C.C.NO.12951 OF 2017 evidence that, she was purchased the golden ornaments from the complainant and at that time, she has issued cheque in question and subsequently, she paid the purchase amount and even after repayment of the purchased due amount, the complainant has failed to returned the cheque in question and same has been misused and filed false complaint with an intention to get wrong full gain. But, to substantiate the same, she has not produced any documents except her oral testimony.
15. If really, she was not at all due amount in question to the complainat and she was not at all issued cheque in question for payment of the due amount and further, she was purchased the golden ornaments from the complainant and at that time, she has issued cheque in question and subsequently, she paid the purchase amount and even after repayment of the borrowed the loan amount the complainant has failed to returned the cheque in question and same has been misused and filed false complaint with an intention to get wrong full gain, but to substantiate the same, she ought to have gave reply notice to the legal notice issued by the complaint, she ought to have take any legal action against the complainant, she ought to have challenged the cognizance taken by this Court. Therefore, non-performing the aforesaid legal proceedings that itself, it is very much fatal to the alleged 13 C.C.NO.12951 OF 2017 defence set-up by the accused during the course of PW-1 and during the course of her evidence.
16. Further, the counsel for the accused has confronted the one document during the course of cross of PW-1 and same has been admitted by the PW-1 and same is marked as Ex.D1 and on perusal of the Ex.D1 it is clearly mentioned that, which is estimated bill with respect to purchase the golden ornaments which is worth of Rs.1,11,987/- on 12.12.2015 and the said document does not related to the matter in dispute. Therefore, it can be presumed that, merely production of Ex.D1 it does not defeat the claim of the complainant as per Ex.P8 and therein relevant entry as per Ex.P8(a).
17. There is no dispute that, Ex.P2 cheque is belonging to her own bank account cheque, but she has denied that, signature found on the Ex.P2(a) is not her own signature, but on perusal of the Ex.P3 and Ex.P4 which are reveals that, which were issued by the banker that, "Funds Insufficient" and "Drawer signature differs" and substantiate the same, she ought to have examine her banker by production of her specimen signature to compare that, whether signature found on the Ex.P2(a) pertain to her own signature or not. Therefore, non- examination of her banker the said defence taken by the 14 C.C.NO.12951 OF 2017 accused is not sustainable.
18. The drawer of the cheque have to take abundant precaution prior to issuance of cheque in question. Therefore, in the instant case also. It can be presumed that, no any ordinary prudent man will issue signed blank cheque to any other persons without having monetary transaction between themselves. Hence, the complainant/PW-1 has proved his case by adducing cogent and corroborative evidence under Section 138 of N.I.Act., and the accused has failed to rebut her defence by adducing cogent and corroborative evidence under Section 139 of N.I.Act., Hence, the probability of the preponderance is higher on the side of the complainant, rather than the accused.
19. Ordinarily offence under Section 138 of N.I.Act "mensrea" is not essential, under Section 138 of N.I.Act , is bring into operation rule of strict liability, whereas, "mensrea" is essential ingredients in criminal offences. Therefore, The complainant has proved her case against the accused, since offence under Section 138 of N.I.Act element of Mensrea has been excluded in general public interest to curb the instances of dishonouring of cheques and to lend the credibility to the commercial transaction. Therefore, in this case also the accused knowing fully she 15 C.C.NO.12951 OF 2017 was due amount in question to the complainant and for discharge the due amount she had issued cheque in question. Since the present complaint is summary trial and quasi-criminal in nature, it is like recovery proceedings and punishment is fine or in default of it simple imprisonment.
20. Looking to the conduct of the parties to the proceedings, the accused is not being a lay women and she is B.A. Graduate and she know the cause and consequences for issuance of singed blank cheque to any other persons under the process of law and present transaction which is commercial transaction and the complainant has filed the present complaint in the year 2017 already more than one year has elapsed and awarding cost of litigation an amount of Rs.14,250/- since the trial faced by the complainant is just and proper to meet the ends of justice.
21. Hence, in the light of the above observation, the complainant has successfully proved that, the accused has committed offence punishable under Section 138 of N.I. Act with these reasons, I am the opinion that, the complainant successfully established before the Court, the accused has issued Ex.P2 to the complainant for the legally recoverable debt of Rs.1,60,750/- including the cost of litigation.
16 C.C.NO.12951 OF 2017Therefore, I answer the point No.1 in the affirmative.
22. Point No.2 :- In view of my findings on Point No.1 in the affirmative, I proceed to pas the following...
ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
The accused shall pay a fine of Rs.1,75,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for Two Months.
Further, ordered that, out of the said fine amount Rs.1,72,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and remaining an amount of Rs.3,000/- shall be remitted to the state as fine.
The bail bond and surety bond of the accused stands canceled.
Free copy issued to the accused.
17 C.C.NO.12951 OF 2017(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified, corrected and then pronounced by me in the open Court on this the 10th day of October 2018).
(Rajkumar.S.Amminbhavi) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the complainant:
PW.1 A.M. Venkatesh List of documents exhibited on behalf of the complainant:
Ex.P.1 GPA Ex.P.2 Cheque Ex.P.2(a) Signature of the accused Ex.P.3 & 4 Two bank endorsements Ex.P.5 Office copy of the legal Notice Ex.P.6 Postal receipt Ex.P.7 Postal acknowledgment Ex.P.8 Receipt book Ex.P.8(a) Relevant Bill No.1558
List of witnesses examined on behalf of the accused :
DW.1 Sridevi .V @ Sridevi Arun List of documents exhibited on behalf of the accused :
Ex.D1 Copy of the Estimate XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
18 C.C.NO.12951 OF 201710.10.2018.
Complainant : CN Accused : VVV Judgment.
(Vide separate judgment pronounced in the open Court) ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
The accused shall pay a fine of Rs.1,75,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for Two Months.
Free copy issued to the accused.
Further, ordered that, out of the said fine amount of Rs.1,72,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and remaining an amount of Rs.3,000/- shall be remitted to the state as fine.
The bail bond and surety bond of the accused stands canceled.
Free copy issued to the accused.
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
19 C.C.NO.12951 OF 2017 20 C.C.NO.12951 OF 2017Heard Inference 21 C.C.NO.12951 OF 2017