Bangalore District Court
Srinidhi Credit CoOperative Society ... vs Smt.Roopa.M.N on 28 October, 2022
1
KABC030097282019
Presented on : 07-02-2019
Registered on : 08-02-2019
Decided on : 28-10-2022
Duration : 3 years, 8 months, 21 days
IN THE COURT OF THE XL ADDL.CHIEF METROPOLITAN
MAGISTRATE, BENGALURU
Present : Sri. P. Shivaraj,
B.Com. LL.B.
XXXVIII A.C.M.M Bengaluru
C/c.XL A.C.M.M., Bengaluru
Dated this the 28th day of October2022
C.C.NO:3535/2019
COMPLAINANT: Srinidhi Credit Cooperative Society Limited
Rep. By its Chief Executive Officer/Secretary
Sri.Suresh D.R. S/o.Rangaiah, 49 yrs.
No.385, 8th A Main, 11th Cross
Bhvaneshwarinagar, T.Dasarahalli,
Bengaluru560 068
(Sri.K.Nanjundaiah, Advocate)
`
// VS //
[
ACCUSED: Smt.Roopa.M.N
W/o.Muniraju H.G. 40 yrs
R/a.No.1241/6, 4th Cross, 8th Main,
K.N.Extension, Yeshwanthpura,
Bengaluru560 022.
also at:
Adaripura, Kadanooru Post,
Doddballapura, Bangalore Rural District.
[Sri.H.Lakshminarayan, Advocate]
Offence : U/s/ 138 of N.I Act of 1881
2 C.C.No.3535//2019
Plea of accused : Pleaded not guilty
Final Order : Accused is convicted
Date of judgment : 28/10/2022
Sd/-
(P. SHIVARAJ)
C/c.XL A.C.M.M.,
Bengaluru.
: J U D G M E N T :
The complainant is a Credit Cooperative society
Ltd. and its authorized person Sri.Suresh D.R. has filed
the private complaint U/s 200 of Cr.P.C. against the
accused alleging that accused has committed the offence
punishable under section 138 of Negotiable Instrument
Act, 1881.(For short N.I.Act,1881).
02. Complainant case is as follows:
Accused is one of the member with the complainant
society. On 31/3/2017 accused has borrowed loan of
Rs.1,00,000/ from the complainant society and she has
executed the documents as per its norms and she has
undertaken to repay the said loan amount along with the
interest. Accused has failed to repay the said loan amount
with interest as agreed by her. In order to repay the loan
amount accused has issued cheque bearing No.233299
dated 13/11/2018 for Rs.1,35,000/ in favour of the
complainant society which is drawn on Karantaka Bank,
Bengaluru branch.
3 C.C.No.3535//2019
3. As per the instructions of the accused,
complainant society presented the aforesaid cheque for
encashment through its banker. The aforesaid cheque
was returned dishonoured with an endorsement "Funds
Insufficient", to that effect, complainant society received
the cheque return memo from its banker on 13/12/2018.
Complainant society informed the aforesaid fact to the
accused and issued legal notice by way of RPAD to the
accused on 17/12/2018 and the same returned unserved
on 19/12/2018. Accused has failed to pay the cheque
amount. Complainant Society alleged that accused has
intentionally not maintained sufficient amount in his
bank account to honour the cheque. Inasmuch, accused
has committed the offence punishable under section 138
of N.I. Act. On the aforesaid allegations, the complainant
society approached this court and prays this court to
punish the accused and to award the compensation.
4. Originally the private complaint was filed before
Hon'ble XXVI ACMM court Bengaluru. The learned
presiding officer of that court, took the cognizance for the
offence punishable U/s 138 of N.I.Act and recorded the
sworn statement of the authorized person of complainant
society. On finding primafacie case, process was issued to
the accused.
5. After service of the summons to the accused,
accused has appeared before that court through her
4 C.C.No.3535//2019
counsel, and she got released on bail. As per order sheet
note and in compliance with provision of section of 207 of
Cr.P.C. papers of the prosecution was supplied to the
accused, substance of the accusation is readout to
accused, in the language known to her, she pleaded not
guilty and submitted that, she is having defence to make.
Later as per special notification no. ADM/1/5/2020
dt:26.05.2020, case transferred to this court.
6. In order to prove the guilt of the accused, the
sworn statement affidavit filed by the authorised person of
the complainant society is treated as his examinationin
chief affidavit and he got marked 7 documents which are
at Ex.P1 to 7 and PW.1 is fully cross examined.
Accused statement is recorded, under Sec.313 of
Cr.P.C. she denied the same and submit that she is having
evidence to lead. Accused has not chosen to lead the
evidence and there is no material on record to show that
accused is prevented from appearing before this court to
lead her evidence. Accordingly, her evidence is taken as
Nil.
7. Both the parties are permitted to file their written
arguments on merits. In compliance with the order counsel
appearing for the accused has filed the written arguments
along with the authory. Complainant has not chosen to file
the written arguments, accordingly, complainant argument
5 C.C.No.3535//2019
is taken as nil. I have verified the same along with the
materials available on record.
Counsel appearing for the accused has relied on the
authority Branch Manager, PCA and RD Bank Ltd.
Belthangady /vs/ Suresh Das in Crl.Appeal No.425/2010 -
DD27/02/2018.
8. The following points that arise for my
determination:
:P O I N T S:
1. Whether the complainant society proves
that, the accused has committed the
offence punishable U/s 138 of the N.I
Act, as alleged in the Complaint?
2. What Order?
9. After carefully going through the materials
available on record and taking into consideration of facts
and circumstances of the case, my finding to the above
points are as follows:
Point No.1: In the Affirmative,
Point No.2: As per final order, for the following:
REASONS
10. Point No.1: PW.1 being the authorized person of
complainant society, he reiterated the complaint averments
in his sworn statement affidavit which is treated as his
examinationinchief affidavit.
11. Ex.P1 is the authorization letter. It reveals that
PW.1 is the authorized person of the complainant society
6 C.C.No.3535//2019
and the said documents is not disputed nor denied by the
accused. Accused has not disputed nor denied the issuance
of cheque as per Ex.P.2 and her signature as per Ex.P.2(a).
Inasmuch the initial statutory presumption attached to the
cheque has to be raised in favour of the complainant society
as per Sec.118 and 139 of NI Act.
Added to it, accused has not given the reply to the
mandatory notice issued by the complainant society as per
Ex.P.4 and it is one of the strongest ground to hold and
infer that cheque in question belongs to the accused and
she has issued the same for discharge of her liability
towards the complainant society.
12. In order to rebut the initial statutory presumption
attached to the cheque, accused cross examined the PW.1,
PW.1 has clearly deposed that on 31/3/2017 accused has
borrowed the loan of Rs.1,00,000/ and the said loan
amount is paid through the cheque. He clearly deposed
that they have not collected the cheque from the accused
while sanctioning the loan and he clarified the fact that
accused has issued the cheque as per Ex.P.2 as on the date
stated therein. He clearly denied the suggestion that they
have created loan account statement of the accused as per
Ex.P.7. He clearly deposed that accused has paid the
interest and she has not paid the principle loan amount.
13. The learned counsel appearing for the accused in
his written arguments contended that complainant has not
7 C.C.No.3535//2019
issued the mandatory notice to the proper address of the
accused and complainant has not complied the
requirements of Section 138(b) of N.I.Act. He has also
contended that complailnant has not tendered the
documents which are secured from the accused while
sanctioning loan and he has disputed the genuinenity of
loan account statememnt of the accused as per Ex.P.7 and
he contended that said documents is not accompanied with
the certificate as per Section 65(b) of the Evidence Act. He
further contended in his written argument that accused has
not borrowed the loan from the complainant society.
Accused husband Mr.Muniraj and PW.1 are known to each
other and PW.1 was carrying out the chit business in the
complainant society premises and accused husband handed
over the blank cheques of the accused to PW.1 for the
purpose of security. Such being the case, complainant has
come up with the false case. He further contended that
there is no legal enforceable debt against the accused.
14. On careful perusal of the evidence putforth on
record, accused herself has elicited the loan sanctioned
details from the mouth of PW.1. Accused has not disputed
nor denied the address to which the complainant has issued
the mandatory legal notice as per Ex.P.4. In the cross
examination of PW.1 accused has not suggested the correct
address of the accused nor denied the address of the
accused as stated in Ex.P4 and accused has not tendered
8 C.C.No.3535//2019
the document to show that accused is residing in the
address other than the address to which complainant has
issued the notice to the accused as per Ex.P.4. Such being
the case, without the cogent and probable evidence, the
contention of the accused that notice is not issued to the
correct address of the accused cannot be accepted and it is
sufficient to hold that complainant has complied the
ingredient of Section 138(b) of the N.I.Act.
15. Apparently accused has not led any evidence nor
placed any probable material to substantiate her written
arguments in respect of the fact related to the relationship
between PW.1 and husband of the accused and also
regarding the issuance of accused cheque by her husband
to PW.1 as a security for the alleged transaction. Patently,
accused has not made any suggestion regarding the
aforesaid facts to PW.1 during his cross examination nor
elicited any material facts to disprove the allegations made
against the accused.
16. If the version of the complainant is far away from
the truth and if the contention of the accused is really true,
accused could have led the evidence or she could have
suggested her contention to PW.1 to disprove the
complainant allegation and to probabilize the contention as
contended in the written arguments. The oral testimony of
PW.1 corrobrates with the complaint averments and
documents relied by him.
9 C.C.No.3535//2019
17. There is no material on record to show that
accused has improbabilized the version of the complainant
and there is no material on record to disbellieve the version
of complainant society. If the complainant version is false or
far away from the truth, accused could have effortlessly
suggested the details of repayment of loan installments to
PW1 or she could have tendered the documents for the
same before this court to destroy the version of the
complainant. Accused has not made any effort for the same
and she failed to establish the fact that she has sufficient
amount in her bank account as on the date of the cheque to
honour the cheque in question, but she has failed to comply
the same.
18. In the authority relied on by the counsel appearing
for the accused, it is held that the alleged debt must be in
existence and it shall be legally recoverable as on the date of
the cheque so as to attract the provisions of Section 138 of
N.I.Act., but in the present case accused has not rebutted
the initial presumption raised in favour of the complainant
society as per Section 139 of N.I.Act. Added to it, as
discussed above, accused has not probabilized her
contention as contended in her written arguments. Hence,
with great respect to the aforesaid authority and by
considering the principles laid down therein and also by
considering the true spirit and object of Section 118 and
139 of N.I.Act and by considering the facts and attendance
10 C.C.No.3535//2019
circumstance and evidence put forth on record, this court is
of the humble opinion that the facts and circumstances
discussed in the aforesaid authority is entirely different
from the present case.
19. Patently, accused has not placed any convincing,
cogent evidence before this court nor elicited any material
facts from the mouth of PW.1 to improbabilize the complaint
version. Accused could have putforth the circumstances to
convince the court that presumed fact does not exists and
the debt as alleged by the complainant does not exists and
illegal. Hence the initial statutory presumption attached to
the cheque in question cannot be said to have been
rebutted by the assuced and mere contending many facts in
arguments with out demonstrating the probabilities are not
sufficient to revert back the burden on the complainant
society to prove its case beyand resonable doubt. Hence,
with the aforesaid discussion based on the facts and
attending circumstances of the case and by considering the
evidence placed on record and with the aforesaid
discussion, I am answering this point in the Affirmative.
20. POINT NO.2: For the foregoing reason and
discussion, on point No.1, I proceed to pass the following:
ORDER
Exercising the power conferred U/sec 255(2) of Cr.p.c. accused is convicted and for the offence punishable U/s.138 of the Negotiable Instrument Act,1881.
11 C.C.No.3535//2019Accused is sentenced to pay fine amount of Rs.1,61,300/ to the complainant society within two months from the date of this order, in default accused has to under go simple imprisonment for a period of three months.
Out of the said fine amount, an amount of Rs.1,59,300/ is ordered to be paid to the complainant society as compensation. The remaining amount of Rs.2,000/ shall be confiscated to the state towards litigation expenses.
The bail bond and surety bond of accused shall continue for next 6 months as per Sec.437A of Cr.P.C.
Office is directed to supply the free copy of this judgment to the accused forthwith.
(Dictated to the stenographer, transcribed and computerized by him, corrected by me on computer and then pronounced by me in the open court on this the 28th day of October 2022) S d/- (P. SHIVARAJ) C/c.XL A.C.M.M., Bengaluru.
12 C.C.No.3535//2019ANNEXURES
1) List of Witnesses Examined on behalf of complainant society:
PW.1 : Sri.D.R.Suresh.
2) List of exhibits marked on be half of complainant society:
Ex.P.1 : Authorization letter.
Ex.P.2 : Original cheque.
Ex.P.2(a) : Signature of the accused.
Ex.P.3 : Cheque return memo.
Ex.P.4 : Office copy of legal notice.
Ex.P.5 : Postal Receipt.
Ex.P.6 : Unserved RPAD cover
Ex.P.6(a) : Notice copy of Ex.P.6.
Ex.P.7 : Loan Statement.
3) List of witness examined on behalf of the Accused: Nil
4) List of exhibits marked on behalf of the Accused: Nil (P. SHIVARAJ) C/c.XL A.C.M.M., Bengaluru.13 C.C.No.3535//2019
(Judgment pronounced in Open Court vide separate order) ORDER Exercising the power conferred U/sec 255(2) of Cr.p.c. accused is convicted and for the offence punishable U/s.138 of the Negotiable Instrument Act,1881.
Accused is sentenced to pay fine amount of Rs.1,61,300/ to the complainant society within two months from the date of this order, in default accused has to under go simple imprisonment for a period of three months.
Out of the said fine amount, an amount of Rs.1,59,300/ is ordered to be paid to the complainant society as compensation. The remaining amount of Rs.2,000/ shall be confiscated to the state towards litigation expenses.
The bail bond and surety bond of accused shall continue for next 6 months as per Sec.437A of Cr.P.C.
Office is directed to supply the free copy of this judgment to the accused forthwith.
(P. SHIVARAJ) C/c.XL A.C.M.M., Bengaluru.
14 C.C.No.3535//2019 15 C.C.No.3535//2019