Bangalore District Court
Company Had Sanctioned The Loan And The ... vs As Required Under Law. As There Is ... on 7 July, 2018
IN THE COURT OF THE XLII ADDL. CHIEF METROPOLITON
MAGISTRATE NRUPATHUNGA ROAD, BENGALURU CITY
Present:-
Present:- ABDUL RAHIM HUSSAIN SHAIKH
B.Sc, B.Ed, LLB(Spl)
XLII A.C.M.M
Bengaluru City.
Dated this the 7th day of July, 2018
CC.No. 28048/2017
JUDGMENT U/S 355 OF Cr.P.C.
1. Sl.No. of the case : C.C.No.28048/2017
2. The date of commence of Evidence : 03.04.2018
3. The date of Institution : 27.09.2017
4. Name of the Complainant : M/s Janalakshmi Financial
Services Limited,
Having its Regional Office
at No.29, Union Street,
Off Infantry Road,
Bengaluru- 560 001.
Represented by its Power
of Attorney Holder
Mr. Sreenidhi S.N
5. Name of the Accused : Smt. Kavithat Mallakrishnappa
45, Budamarana Halli,
Holavanahalli Post,
Koratagere Taluk,
Tumkur- 572129.
2 CC No.28048/2017
6. The offence complained
of or proved : 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 : 07.07.2018.
J U D G M E N T
1. This case has been registered against the accused on the basis of the complaint filed by the complainant under section 200 of Cr.P.C. for the offence punishable under section 138 of Negotiable Instruments Act.
2. The brief facts of the complainant's case is that :
The complainant is a Non Banking Financial Company registered with Reserve Bank of India. In the course of their financial services, they introduced Jana Kishan Loan for the benefit of their customers on the application of the respective customers. The accused had requested for loan and the complainant company had sanctioned the loan and the accused had agreed to repay the loan amount as per repayment schedule. The accused entered into an agreement bearing No.31088940001937 and under the contract a sum of Rs.68,289/- was due by the accused and towards the said due 3 CC No.28048/2017 the accused had issued cheque bearing No.67541 dated 19.07.2017 for Rs.68,280/- drawn on Canara Bank, Koratagere Branch. The complainant presented the said cheque through its banker i.e. Axis Bank, Shanthi Nagar Branch, Bangalore. The said cheque was dishonoured for the reason "Payment Stopped by the Drawer". To that effect complainant received the banker memo dated:25.07.2017. There after the complainant got issued legal notice to the accused on 14.08.2017 under registered post calling upon the accused to make the payment of the cheque amount within 30 days from the date of the receipt of the legal notice. It was served upon the accused on 17.08.2017. Inspite of receipt of the notice the accused fails to arrange the cheque amount. Thus, according to the complainant the accused has committed an offence punishable offence U/s 138 N.I. Act.
Accordingly the complainant has filed the complaint on 27.09.2017 against the accused for the said offence.
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 is sufficient material, plea was recorded against the accused on 08.03.2018 and explained to the accused in his vernacular, for which the accused 4 CC No.28048/2017 has pleaded not guilty and claims to be tried.
4. In order to prove the case, the Power of attorney holder of the complainant examined himself as PW1 and got marked Ex.P1 to 5 and closed the side. Then the statement u/s 313 Cr.P.C. came to be recorded on 07.07.2018, wherein the incriminating evidence appearing against the accused was read over the explained to the accused. Accused neither examined nor got marked any documents on his behalf.
5. The learned Counsel for complainant argued that one Smt. Kavitha Mallakrishnappa had applied Jana Kisan Loan and availed the loan from the complainant company. In order to repay the loan amount, accused had executed the disputed cheque for an amount Rs.68,289/- towards full and final discharge of payment of the said loan in favour of the complainant. On presentation of the said cheque it was dishonoured for the reasons 'Payment Stopped by the Drawer' on 25.07.2017. It is further contention that even after receipt of legal notice accused failed to pay the cheque amount. The accused not disputes the cheque in question pertains to his account and it bears his signature. Therefore, the presumption is in favour of the complainant. No rebuttal evidence produced by the accused. The ingredients of 5 CC No.28048/2017 Sec.138 and 142 are duly complied with. Hence, prayed to convict the accused.
6. The learned Counsel for accused submitted that the complainant witness Sri. Santhosh Kansoor. R/PW1 who has no proper authority to give evidence. It is further submitted that PW1 has produced Ex.P1/power of attorney which is not given in pursuance of the board of resolution of the complainant Company. Therefore, the Ex.P1 is no way helpful to prove that he has authorization to give evidence in this case. Further it is contended that the borrower Smt. Kavitha Mallakrishnappa has repaid the loan amount but the complainant by misusing the cheque collected towards security has filed this false case. Hence, the learned Counsel for accused prayed to acquit the accused.
7. On the basis of the above facts, the following points arise for my consideration:
1) Whether the complainant proves that the accused towards discharge legal recoverable debt issued cheque No.67541 dated:19.07.2017 for Rs.68,289/- drawn on Canara Bank, Koratagere Branch, in favour of complainant, on presentation for encashment it was returned as 'Payment 6 CC No.28048/2017 Stopped by the Drawer' 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?
8. 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
9. Point No.1:-
No.1 In order to prove the case, the General Power of Attorney of the complainant Company Sri. Santhosh Kansoor filed affidavit in lieu of examination-in-chief and has examined as PW1. He has reiterated the allegations made in the complaint on oath. He also got marked documents Ex.P1 to P5. Ex.P1 is the cc of power of attorney, Ex.P2 is the cheque, Ex.P2(a) is the signature of the accused, Ex.P3 is the bank memo, Ex.P4 is the office copy of the legal notice, Ex.P4(a) is the postal receipt, Ex.P4(b) is the Track consignment letter, Ex.P5 is the complaint. In the cross examination accused counsel has put up the specific question to PW1 as to in what capacity he is employed in complainant company for the same PW1 has deposed that he is working as the legal consultant from 03.10.2017. This evidence 7 CC No.28048/2017 clearly goes to show that PW1 is authorized person to depose on behalf of the company. Further in support he had produced Ex.P1 the power of attorney which has been issued by the complainant company authorizing PW1 to contest the case. On perusal of Ex.P1 it is found that PW1 has been authorized by the complainant company which bears the signature of Mr. Jayasheela Bansali, CFO of Janalakshmi Finance Pvt Ltd. This document clearly hold that PW1/Mr. Santhosh Kansoor who is legal consultant is authorized by the complainant company to contest their case on their behalf.
10. In this case accused has not disputed the cheque in question pertains to his account and his signature on it. In the cross examination of PW1 the accused Counsel only disputed the handwritings in the said cheque but, has not led cogent evidence and produced relevant document to prove that the handwritings in the said cheque does not belongs to the accused. This clearly established that the accused has borrowed a loan from complainant company and he has to repay the same. It is very pertinent to note that the signature of the accused on the Ex.P2/cheque resembles with the signature of the accused and the vakalath which clearly established that both the signatures belongs to accused. 8 CC No.28048/2017
11. At this juncture I would like to discuss the dictum of law laid down by Hon'ble High Court when the signature of the accused is not denied and proved by the complainant.
Delhi District Court (Sh.Prem Chand v/s Unknown on 19 October, 2016 Para-
Para-21 it is held that :
"Admission of signatures is sufficient to prove that the cheque in question must have been issued in discharge of some legal liability/debt. In Jaipal Singh Rana v. Swaraj Pal 149 (2008) DLT 682, the Hon'ble Delhi High Court has held that that there is no alteration in a cheque if the amount and the date are filled by somebody else apart from the signatory of the cheque. It was further held that there is no law that requires the filling up of entire cheque by drawer himself".
When the accused accused had admitted the signature on the cheques in question the defence of the accused that the cheques were undated and irrelevant. The admission of signature is sufficient to prove that cheques in question must have been issued in discharge of some legal liability-debt. At this juncture I would also like to discuss another citation relied by the complainant reported in LAWS (SC) 2015 4 79 :
"Negotiable Instruments Act, 1881- 1881-Section 138- 138 - Scope of-
of-Where issuances of cheque and signature of accused thereon thereon has been accepted by 9 CC No.28048/2017 him presumption under Section 139 would operate, "Negotiable Instruments Act, 1881- 1881- Sections 138 and 139- 139- Offence of dishonour of cheque-
cheque- Where cheque issued by accused as well as signature on it was not disputed by accused therefore presumption under Section 139 of Act attracted".
12. Further at this juncture I would also like to discuss the dictum of law laid down in 2010 (11) SCC 441 (Rangappa v/s Sri. Mohan) The Hon'ble Supreme Court has laid down the dictum of law and has held in para-15 that :
..........." Since the accused did admit the signature on the cheque was his, the statutory presumption comes into play and the same has not been rebutted even with regard to the materials submitted by the complainant....." In the light of the principle laid down in the above case, I would like to appreciate the material evidence that has been placed before the Court. It is pertinent to note that complainant/PW1 deposed that accused has issued a cheque in discharge of his liability which are marked as Ex.P2 and the signature of the accused is marked as Ex.P2(a) and the bank memo regarding return of the cheque are marked as Ex.P3. This evidence has to be rebutted by the accused by adducing cogent evidence. But the accused has neither entered 10 CC No.28048/2017 into the witness box nor produced any cogent evidence to denying issuing of the cheque Ex.P2 and the signature of the accused Ex.P2(a). On perusal of the Ex.P2 cheque, it is found that it was the cheque which was issued for an amount of Rs.68,289/- which bears the signature of the accused marked as Ex.P2(a). In the absence of rebuttal cogent evidence by the accused it is well established that accused had issued a cheque Ex.P2 to the complainant for the discharge of his liability. The above discussed rulings are applicable to the present fact of the case when the accused signature is proved on the cheque by the complainant. Hence by virtue of section 118 and 139 of Negotiable Instruments Act and in view of the principle lay down by the Hon'ble Apex Court of India and various Hon'ble High Courts in catena of decisions the complainant discharged his initial burden and the presumption is in favour of the holder of the cheque i.e., complainant. When the burden was on accused to lead the rebuttal evidence to disprove the fact that he has not issued Ex.P2/cheque to the complainant for discharge of debt or liability accused has failed to prove the same.
13. At the same time it is necessary to note that it is the definite case of the accused that complainant has misused the cheque which was collected towards security. If complainant misused the 11 CC No.28048/2017 cheque of accused, as a prudent man he could have initiated legal against the complainant. But nothing has been produced by the accused to show that he has initiated legal action against the complainant for the alleged misutilization.
14. It is equally important to note that if really the accused given the Ex.P2/cheque towards security, as a prudent man the accused is expected to intimate his banker to stop the payment in case of presentation of said cheque for encashment. But in the instant case of the accused has not intimated his banker and this conduct show the falsity of the case of the accused.
15. It is equally important to note that prior to filing of the complaint the accused got issued legal notice as per Ex.P4. The postal receipt is produced at Ex.P4(a) & the track consignment is produced at Ex.P4(b). It is material to note that as per Ex.P4(b)/track consignment given by the post office the notice have been delivered to the address of accused on 17.08.2017. Further there is no evidence from the accused denying the address on the legal notice and service of the said legal notice in person. Though during the course of cross-examination PW1 some hypothetical questions were posed by advocate for accused, nothing has been elicited from his mouth, so as to impeach the 12 CC No.28048/2017 credibility of the said witness in that regard. The evidence on record reveals that the Ex.P4/legal notice was sent to the correct address of the accused.
16. At this juncture in the light of 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), 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. The evidence on record clearly establishes that the complainant sent the notice to the accused to the correct address through RPAD. To disprove that notice is not received, accused has not entered the witness box. Therefore, sending legal notice to the correct address of the accused is in compliance with u/s 138(b) of N.I. Act. Admittedly accused has not repaid the cheque amount. If really accused is not due to pay the amount claimed in the cheque, he could have issued the reply notice or paid the cheque amount at least after service of summons of this case. In the instant case accused neither issued reply nor paid cheque amount even after receipt of summons for the best reasons known to him.
17. Non-initiating the legal action for alleged misutilization, 13 CC No.28048/2017 non-intimating to his banker and non-issuance of reply are the strongest circumstances to draw inference against the accused. As noted supra it is settled that the presumption has to be rebutted by cogent proof and not by a bare explanation which is merely plausible. On appreciation of material on record in the considered opinion of this Court, the evidence placed on record by the accused is not sufficient to rebut presumption. Hence, it cannot be said that the accused has rebutted the presumption.
18. The word 'unless unless contrary is proved' is discussed by the Hon'ble Apex Court in a decision reported in 2011 Crl.L.J 4647 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 it exist. Therefore, unless explanation is supported by proof, the presumption created by the provisions cannot be said to be rebutted. On appreciation of evidence on 14 CC No.28048/2017 record the explanation of accused is not supported by proof. Accordingly, I have no hesitation to arrive at the conclusion that accused has utterly failed to rebut the presumption.
19. In this case, the Court has to peruse whether mandatory requirements of Sec.138 and 142 of N.I. Act are complied with or not to take cognizance of complaint for the commission of crime punishable u/s 138 of N.I. Act. It should be ascertained from the date of issuance of cheque, presentation of cheque, communication of Bank endorsement, issuance of legal notice for payment of cheque amount, service of notice and date of institution of complaint. Ex.P2/cheque is dated 19.07.2017, presented the bank for encashment and received the intimation of dishonour of cheque for the reason 'Payment Stopped by the Drawer' as per Ex.P3 dated 25.07.2017, complainant got issued notice as per Ex.P4 on 14.08.2017 and it was served upon the accused on 17.08.2017. Complaint is filed on 23.09.2017. It is evident from the available material that the cheque is presented for encashment within the validity time, notice demanding the cheque amount and filing of complaint before the Court after service of notice are within the period of specified by law. The provisions required as per law in Sec.138 & 142 of N.I Act are duly 15 CC No.28048/2017 complied with.
20. On appreciation of entire evidence, this Court is of the opinion that the accused has miserably failed to prove the fact that he has not issued cheque for discharge of legally enforceable debt. On the contrary, the complainant has proved that the accused has issued cheque/Ex.P2 for a sum of Rs.68,289/- towards discharge of legally enforceable debt and on presentation of the cheque, it was dishonored for the reasons 'Payment Stopped by the Drawer'. Even after service of legal notice, the accused has not paid the cheque 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. Hence, I answer the above point No.1 in the affirmative.
21. No.2 From the material from record it appears that Point No.2:-
accused is aged about 23 years and she is housewife. Considering the age and avocation of the accused, also quantum of accused if the accused is sent to jail it will cause prudent to the accused and the family members. Having regard to the said facts and circumstance, prevailing rate of interest in the nationalized bank and litigation expenses I proceed to pass the following: 16 CC No.28048/2017
ORDER The accused is found guilty for the offence punishable u/s 138 of N.I. Act.
Acting u/s 264 of Cr.P.C. the accused is convicted and sentenced to pay fine of Rs.70,000/-, in default shall undergo simple imprisonment for two months.
Out of fine amount of Rs.70,000/- a sum of Rs.68,000/- is ordered to be paid to the complainant towards compensation u/s 357 of Cr.P.C. and the balance amount of Rs.2,000/- 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 7th day of July, 2018) (ABDUL RAHIM HUSSAIN SHAIKH) XLII Addl. Chief Metropolitan Magistrate, Bengaluru.
17 CC No.28048/2017ANNEXURE Witnesses examined for the Complainant :
PW1 : Sri. Santhosh Kansoor
Witnesses examined for the Accused: -NIL-
Documents exhibited by the Complainant:
Ex.P1 : C/c of certificate of registration
Ex.P2 : Cheque
Ex.P2(a) : Signature of the accused
Ex.P3 : Bank Memo
Ex.P4 : Office copy of the Legal notice
Ex.P4(a) : Postal receipt
Ex.P4(b) : Track consignment letter
Ex.P5 : Compliant
Documents exhibited by the Accused:
Accused:- -NIL-
XLII Addl. Chief Metropolitan
Magistrate, Bengaluru.
18 CC No.28048/2017
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 264 of Cr.P.C. the accused is
convicted and sentenced to pay fine of
Rs.70,000/-, in default shall undergo simple 19 CC No.28048/2017 imprisonment for two months.
Out of fine amount of Rs.70,000/- a sum of Rs.68,000/- is ordered to be paid to the complainant towards compensation u/s 357 of Cr.P.C. and the balance amount of Rs.2,000/- 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.
XLII A.C.M.M, Bangaluru.