Bangalore District Court
Sri Nanda Kishore vs Smt. Poornima Srinivas on 7 August, 2015
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITON
MAGISTRATE, BANGALORE CITY
Dated this the 7th day of August, 2015
PRESENT: SRI. NAGARAJEGOWDA.D, B.Com., LL.B.,
XXII Addl.C.M.M., Bangalore City.
JUDGMENT U/S 355 OF Cr.P.C.
C.C.No.1131 /2009
Complainant : Sri Nanda Kishore,
S/o late K.Nagesh Rao,
Aged about 50 years,
Residing at No.1078, 27th Main,
9th Block, Jayanagar,
Bangalore - 560 069.
(By Sri T.S.Gurunath & Asso.)
V/s.
Accused : Smt. Poornima Srinivas
D/o Sri B.R.Lakshman Rao,
Major in age,
Residing at No.298, Opp. To Carmel
School 4th Gate, 5th Cross, 60 feet Road,
Padmanabhanagar,
Bangalore.
(By Sri Srinivasachari, Adv.)
Date of Institution 19-10-2007
Offence complained of U/s 138 of N.I.Act.
Plea of the accused Pleaded not guilty
Final Order Accused is Convicted
Date of Order : 07.08.2015.
2 C.C.No.1131/2009
The complainant filed the private complaint u/s 200 of
Cr.P.C alleging that, the accused person has committed an offence
punishable u/s 138 of N.I.Act.
REASONS
The brief facts of the complainant case is as follows:-
2. The complainant and accused are well known to each
other. During March, 2007, the accused very much need of funds
urgently a sum of Rs.10,00,000/- to purchase some immovable
property as she could not get loan from the bank in time and
assured to return the said amount within 2 months after availing
the loan from the bank. Considering the request of the accused,
the complainant had paid the said sum by way of cash in the
same month by collecting the same from his friends and relatives
on returnable basis, with the condition to repay the said amount
as agreed without fail. After the stipulated period, the
complainant approached the accused and requested to return the
said borrowed amount but the accused failed to keep up her
assurance and dodged the time with one or the other reason to
repay the said borrowed amount. On the repeated demand made
by the complainant, to discharge her part of liability, the accused
issued a cheque bearing No. 787610 dated 18-7-2007 for a sum of
3 C.C.No.1131/2009
Rs.6,00,000/- in favour of the complainant drawn on Citi Bank,
Bangalore with the assurance to present the said cheque , the
same will be honoured. Accordingly, on 21-7-2007, the
complainant presented the said cheque for collection, the same is
returned unpaid with an endorsement to that effect "Account
closed/transferred to". Immediately, the complainant approached
the accused and informed about the dishonour of the cheque but
accused tried to dodge the time without proper reason and failed
to arrange the funds. Thereafterwards, on 6-9-2007, the
complainant caused legal notice to the address of accused and
asked her to pay the cheque amount within 15 days from the date
of the notice through RPAD with acknowledgement due and UCP
on 6-9-2007. The notice sent by registered post and UCP were
served to the accused on 8-9-2007. Inspite of receipt of legal
notice, she did not replied or complied the notice and thus
accused committed the offence punishable u/s. 138 of NI Act and
punish the accused in accordance with law and to award suitable
compensation , in the interest of justice and equity.
3. The accused appeared before this court and contest this
case by denying the entire case of complainant at the time of
recording of Plea of Accusation . In order to prove the case of
complainant, he adduced his oral evidence as PW-1 by way of
4 C.C.No.1131/2009
affidavit and got marked Ex.P1 to Ex.P16 and examined one
witness as PW-2 and these PW-1 and 2 have been fully cross
examined by the accused counsel and thus complainant closed
his side evidence.
4. There afterwards, the accused examined u/s.313 of
Cr.P.C. in which, she totally denied the entire case of complainant
She in support of her denial, she submits her side no defence
evidence.
5. I have heard the arguments of both counsels of
complainant and accused on merit. The complainant contended
that, for source of income to the complainant, the accused
suggested to the complainant at the time of cross-examination ,
the complainant has denied the same. Hence, the presumption
can be drawn in favour of the complainant u/s.139 of NI Act to
show that for discharge of legal liability, the accused had issued
the cheque in question, the same is dishonoured . In support of
his contention, he relied on the decision reported in 2015(1) DCR
459 and 2015 (1) Crimes 161. Hence, he prays for convicting the
accused in accordance with law. Likewise, the Ln.counsel for
accused vehemently argued before this court that the accused has
not properly complied the ingredients u/s.138 (a) (b) (c) of NI Act
5 C.C.No.1131/2009
and he has not issued legal notice after receipt of the
endorsement from the bankers hence, the case of complainant is
barred by limitation with respect of issuance of legal notice.
Further contended that, this accused has given rebuttal evidence
to the case of complainant. The complainant had not proved that
he had paid Rs.10 lakhs to this accused but the alleged cheque in
question is belongs to this accused, same has been obtained by
the complainant without the knowledge of the accused and filled
up the cheque and misused the same. Hence, this accused is not
liable for conviction . In support of his contention, Ln.counsel for
accused also relied on the following decisions reported in:
2014(3) DCR 411
2015 Crl.L.J. 912(SC)
2009(2) DCR 519(SC)
2008 AIR SC 1325
Crl.A.No.1315/2007
Crl.A.No.2043/2013(SC)
2011(3) KCCR 1825
2004 Cr.L.J.3815
Hence, he prays for acquittal of the accused in accordance with
law.
6. In order to prove the case of complainant, the
complainant adduced his oral evidence as PW-1 filed by way of
6 C.C.No.1131/2009
affidavit. In which, he reiterated complaint contention and
examined PW-2 T.Ramanna . In his chief examination filed by way
of affidavit, he supports the case of complainant to show that he
had paid Rs.5,00,000/- to this complainant as he is a family
friend. In order to substantiate the case of complainant got
marked Ex.P1 cheque alleged to be issued by the accused and
identified the signature of the accused as per Ex.P1(a). This
issuance of cheque in favour of complainant for discharge of legal
liability has been disputed by the accused except at the time of
cross-examination of PW-1 accused counsel suggested that
during the life time of husband of accused, this complainant is
used to visiting the Home of accused. At that time, he taken away
Ex.P1 cheque without the knowledge of the accused , filled up
and filed this case etc.. But in support of the defence taken by the
accused, she did not chose to lead her side defence evidence and
also failed to give rebuttal evidence to the case of complainant to
show that the alleged cheque in question has been issued by the
accused. Ex.P2 is an endorsement issued by the bankers stating
that Ex.P1 cheque is dishonoured due to "Account
closed/transferred to". Ex.P3 is the copy of legal notice . This
notice does not contain the signature of the complainant except
his counsel. With respect of other document is concerned, the
7 C.C.No.1131/2009
complainant taken a contention that the documents were lost
during transit . Accordingly, he has given complaint to the police
and also published in the newspaper and after complying all the
requirements of securing the original documents but he failed to
secure the same and hence, the complainant has filed necessary
application u/s.63 of the Indian Evidence Act, seeking permission
to lead secondary evidence. After contest, this court was allowed
the said application . Against to the order of the said application ,
the accused has not challenged. Further got marked Ex.P4 and
Ex.P5 are the Xerox copy of RPAD postal receipt and UCP for
having sent legal notice to the accused. Ex.P6 is the Xerox coy of
the postal acknowledgements to show that the legal notice sent to
the accused was duly served . For lost of original of the said
document, the complainant lodged the complaint to the police as
per Ex.P7 is the copy of complaint and also he made affidavit to
that effect as per Ex.P8 is the affidavit sworn by the complainant
for lost of his document. Ex.P9 and Ex.P10 are the post office
acknowledgement and also settled reply to show that the legal
notice sent to the accused duly served. Ex.P11 is an endorsement
issued by the concerned police regarding complaint lodged for
lost of his document. Ex.P12 is the Udaya vani Kannada News
paper to publish about lost of document and the concerned public
8 C.C.No.1131/2009
notice is got marked at Ex.P12(a). Ex.P13 is the certified copy of
complaint in C.C.No.1129/2009 to show that this complainant
had filed a private complaint against one Ganesh. Ex.P14 is
another certified copy of complaint filed by the complainant
against one Chandrashekar for dishonour of the cheque . Ex.P15
is the certified copy of deposition in Cc No.3691/2008 on the file
of 16th ACMM Court in which, the complainant herein deposed
against the accused one Kalavathy Shanker regarding dishonour
of the cheque . Ex.P16 is the statement of account pertaining to
this complainant to show that he is having a bank balance more
than Rs.One lakh in his account during the year, 2007. Further
produced Canara Bank letters issued on 3-2-2015 in which, they
have confirmed that their banker sent a cheque returned by
courier on 16-8-2007 . Accused taken a contention that though
endorsement was issued by the bankers but within a period of 30
days, the complainant has not issued any legal notice only after
lapse of 30 days , he issued legal notice . Hence, u/s.138 (a) (b) (c)
of NI Act does not attract at all etc.. But against to this contents of
letter, the accused has not given any rebuttal evidence. Hence,
law presumes that the letter issued by the complainant bankers is
presumed to be a genuine one.
9 C.C.No.1131/2009
7. The accused has denied the entire case of complainant .
In support of her denial, she did not lead her side defence
evidence. However, her counsel cross-examined the PW-1 . In the
cross-examination , he tried to elicited that in order to show he
paid Rs.10 lakhs to the accused, he has not produced any
documentary evidence and he is not doing any money lending
business but he is doing Real Estate business . These things are
not stated in his chief examination and also he do not know
whether the accused wanted to purchase the property at the time
of availing the loan amount also, in which Bank the accused tried
to get the loan. The amount given to the accused may be given by
way of cheque but at that time he had cash with him hence, same
amount has been given to this accused. Further he has stated
that as per Ex.P7 complaint, the address stated of him is belongs
to his address and he has stated that he has not filed by Appeal
against the dismissal of CC No.1129/2009 on the file of 16th
ACMM Court filed against one Kalavathy but he has admitted that
he made a several cases against several persons after dishonour
of the cheque , he may be filed 25 cases against several persons .
In this regard, the complainant counsel contended that accused
has suggested that , this complainant is doing money lending
business and he filed many more cases for dishonour of the
10 C.C.No.1131/2009
cheques itself goes to show that the complainant had sufficient
amount with him. Except at page No.7 accused counsel suggested
that relevant portion is in Kannada which reads thus:
£Á£ÀÄ DgÉÆæAiÀÄ vÀAzÉAiÀÄ ªÀÄ£ÉUÉ ºÉÆÃV §gÀÄwÛzÀÝ PÀÁgÀt DgÉÆæUÉ
¸ÉÃjzÀ ZÉPï£ÀÄß vÉUÉzÀÄPÉÆAqÀÄ §AzÀÄ zÀÄgÀÄ¥ÀAiÀÉÆÃUÀ¥Àr¹PÉÆArzÉÝ£ÀÉAzÀgÉ ¸ÀļÀÄî.
Further he denied that during the life time of husband of accused,
he has not taken any action but he has taken action against the
L.R.s of husband of accused, the same has been denied by the
complainant. In the further cross-examination , he has stated
ignorance about the signature and other contents of the cheque
are in different handwriting and in different ink but he has
voluntarily stated that alleged cheque in question has been
issued by the accused herself and at the end of the cross-
examination on 28-5-2015, in order to get more money from the
accused, he filed case against her etc. In the further cross-
examination , it is elicited that for issuance of legal notice is
concerned, he received endorsement from the bankers through
courier service on 16-8-2007 . Thereafterwards on 6-9-2007 he
issued Ex.P3 legal notice and in his cross-examination page
No.10 accused counsel suggested that this complainant is doing
money lending business and in order to get more money from the
accused and from some other person, he filed false case against
11 C.C.No.1131/2009
the accused etc,, Except the total denial of contention of the
complainant. The accused failed to give rebuttal evidence to the
case of complainant to show that this accused has not obtained
any loan amount but it is admitted that Ex.P1 cheque is belongs
to the accused. Likewise the accused counsel cross-examined the
PW-2. In the cross-examination he denied that the entire case of
complainant as stated in his chief evidence stating that he did
not paid amount to the complainant and in his I.T.Returns, he
has not shown amount given to the complainant etc.. Except total
denial of contention of the complainant and his witness . Accused
failed to give rebuttal evidence to the case of complainant. In
support of the case of complainant, the Ln.counsel for
complainant relied on the following decisions reported in :
2015(1) DCR 459 ( Sri Gurupadaswamy Vs Sri
M.Partha) wherein it is held that, Dishonour of
cheque - conviction and sentence-Held -Sec. 138
of N.I.Act does indeed include existence of leally
enforceable debt or liability and it was open to
accused to raise a defence to rebut the
presumption-Failing which, allowing complaint
under- Sec.-Act is just and proper- No
interference- Petition is dismissed."
2015 (1) Crimes 161(Del) ( Santosh Mittal Vs Sudha
Dayal) Wherein it is held that, Dishonour of cheque
with remarks " insufficient funds" - Blank cheque -
presumption in favour of holder-Reverse onus
clauses- Test of proportionality should guide the
construction and interpretation of reverse onus
12 C.C.No.1131/2009
clauses- A complaint u/s. 138 of the Act was filed
by applicant on allegations that accused was an
intimate and close friend of family of complainant
and on request of the accused complainant had
paid Rs.1 lac in cash as loan to the accused and the
accused had issued post dated cheque of Rs.1 lac in
favour of the complainant which on presentation as
dishonoured- Defence plea was that a blank Hon'ble
Court was given to the c without date and amount
as c had misguided her- According to the accused
she had no liability to pay the cheque amount- Trial
court acquitted accused while holding that the
cheque was not given for the alleged loan but it was
given as security - Appeal against acquittal- Plea
taken was accused respondent that the signature
were obtained on blank documents was a sham
plea devoid of any force- It was duly proved by
complainant appellant that a sum of Rs.1 lac was
given by her as loan to respondent- Whether trial
court was justified in acquitting accused
respondent"
On the aforesaid decisions coupled with the contention of
complainant and suggestion made by the accused counsel to the
witness of complainant, it is clearly established that the
complainant had sufficient amount with him and out of the
amount, he paid to the accused by way of cash. But in order to
show that he paid Rs.10 lakhs for that, he has produced any
documentary evidence but Ex.P1 cheque is issued only to the
extent of Rs.6,00,000/- and for further amount from the accused,
the complainant has not filed any Recovery case against the
accused. Under these circumstances, the complainant is entitled
13 C.C.No.1131/2009
only compensation to the extent of Ex.P1 cheque amount with
simple interest @ 6% P.A. , since this case is pending of the year
2009 till realization of the same.
8. In support of the case of accused, the Ln.counsel for
accused vehemently argued that there is barred by Law of
Limitation, but the legal notice has been issued to the accused
but after receipt of legal notice, the accused has not given any
reply by denying the case of complainant. Except at the time of
arguments on merit, the accused counsel taken a defence that
barred by limitation is not tenable one . In support of his case , he
relied on the following decisions reported in :
2014(3) DCR 411( CCS INFOTECH LTD. ORS Vs
STATE & ANR.) wherein it is held that, Negotiable
Instruments Act , 1881 138(b)- ........Condonation of
delay in issuing demand notice under section 138(b)
N.I.Act is beyond the powers of court.
2015 Crl.L.J. 912(SC) ( K.Subramani Vs K.Damodar
Naidu) wherein it is held that, Dishonour of cheque -
complaint - Finding by trial court on consideration of
entire oral and documentary evidence- That
complainant had no source of income to lend sum of
Rs.14 lakhs to accused- He failed to prove that there
is legally recoverable debt payable by accused to him-
Acquittal of accused, was proper- Order by High
Court remanding case for retrial- Liable to be set
aside.
14 C.C.No.1131/2009
2009(2) DCR 519(SC) ( M.D.Thomas Vs P.S.Jaleel
And Anr.) wherein it is held that, Sec.138 proviso)b)
service of notice- leally -Held service of notice of
demand upon wife of alleged accused is not sufficient
in compliance of Sec. 138 proviso(b) of NI Act-
Acquittal is just and proper
2008 AIR SC 1325 ( Krishna Janardhan Bhat V
Dattatraya G.Hegde) wherein it is held that, (B)
Negotiable Instruments Act (26 of 1881) S,138, 139-
Dishonour of cheque - Defence- proof- Accused not
required to step into witness box- He may discharge
his burden on basis of materials already brought on
record-question whether statutory presumption
rebutted or not- Must be determined in view of other
evidence on record.
Crl.A.No.1315/2007 (Smt. Rukmini Vs Ramanna @
B.M.EEragowda) wherein it is held that the trial
court relies on the provisions of sec. 269 of Income
tax Act, wherein it is indicated that no person shall
take or accept from nay other person, any loan or
deposit otherwise than by an account payee cheque
or account payee bank draft after 30th day of june
1984.
2011(3) KCCR 1825(M/s.United Distributors,
Vs.Smt.Geetha K.Rai) wherein it is held that, ...Non -
applicability of- whether the acquittal of the accused-
respondent , by the trial court, is justified?-Held yes-
The allegation against the accused respondent in
respect of commission of offence punishable, u/s.138
of Negotiable Instruments Act, 1881 cannot, as the
amount of Rs.88,030/- due to the appellant -firm,
was paid by the accused-respondent vide five
cheques, which were encashed by the appellant firm
in the month of August, 2000, though the accused
15 C.C.No.1131/2009
respondent had issued in June, 2000, which were
presented for encashment by the appellant firm, after
realization of the amount, and after stop payment
instructions was issued by the accused respondent
in this regard.
2004 Cr.L.J.3815 ( Srikanth P. Hutagee Vs
Gangadhar S Hutagekar) wherein it is held that,
(B).... Dishonor of cheque , complaint- notice of
demand- Should be issued by complainant within 15
days from date of receipt or intimation from bank
regarding return of cheque - Legal notice issued
after 15 days from date of receipt of intimation
regarding dishonour of cheque - complaint liable to
be quashed.
On careful perusal of the aforesaid decisions of Hon'ble Supreme
Court of India and respected Hon'ble High Court of Karnataka
the contents of the decisions are not squarely applicable to the
case of accused to show that he had given rebuttal evidence to the
case of complainant. As such, complainant had proved the alleged
guilt of the accused beyond all reasonable doubt. Hence, accused
is liable for conviction. Accordingly, I pass the following:
ORDER
Acting u/s 265 of Cr.P.C., the accused is convicted for the offence punishable u/s 138 of N.I.Act and sentenced to pay fine of Rs.5,000 /- (Five thousand only) in default to undergo simple imprisonment for 3 months.
16 C.C.No.1131/2009The complainant was awarded compensation of Rs.6,00,000/-(Six lakhs) from the accused with simple interest @ 6% P.A. from the date of cheque, till realization of the same and the same shall be paid to him within the period of 30 days from the date of this order.
In default of payment of this compensation amount, the accused shall undergo simple imprisonment for One year.
Office is directed to furnish the copy of this Judgment at free of cost to the accused.
(Dictated to the Stenographer, transcribed and computerized by her, corrected and then pronounced by me in the open court on this the 7th day of August, 2015) (NAGARAJEGOWDA.D) XXII ACMM, Bangalore city.
ANNEXURE Witnesses examined for the Complainant:
PW.1 : Nanda kishore P.W.2 T.Ramanna
Witness examined for the accused:
NIL List of Documents marked for the Complainant:
Ex.P1 : Cheque
Ex.P1a : Signature of the accused
Ex.P2 : Endorsement
Ex.P3 : Copy of Legal notice
Ex.P4 & 5 : Copies of Postal receipt & UCP
17 C.C.No.1131/2009
Ex.P6 : Postal acknowledgement
Ex.P7 : Complaint.
Ex.P8 Copy of affidavit.
Ex.P9 &10 Post office settled reply and
acknowledgement.
Ex.P11 Endorsement
Ex.P12 Udayavani newspaper
Ex.P12(a) Relevant portion in public notice
Ex.P13 Certified copy of complaint
Ex.P14 copy of CC No.1129/0809
Ex.P15 Certified copy of deposition in CC
No.3691/08
Ex.P16 Statement of account
List of Documents marked for the accused:
Nil :
XXII ACMM, Bangalore.