Bangalore District Court
Mr.Srinivas vs Mrs.Malarvili on 13 November, 2020
IN THE COURT OF THE XVIII ADDL. CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
PRESENT: MANJUNATHA.K.P, B.A.L, LL.B.
XVIII ADDL.C.M.M., BENGALURU
DATED : THIS THE 13th DAY OF NOVEMBER 2020
C.C.NO: 9790/2018
COMPLAINANT:- Mr.Srinivas,
S/o Chinnappa,
Aged about 65 years,
R/at No.77, 5th block,
S-HIG, 3rd Floor, 5th Phase,
Opp.to Neha Prakash Hospital,
Yelahanaka New Town,
Bangalore-560 064.
(Repted by Shri.SY, Advocate)
V/s.
ACCUSED:- Mrs.Malarvili,
W/o Nithyananda,
Aged about 43 years,
#3, 7th cross, Munikalappa Garden,
M.S.Nagar, Bangalore-560 092.
Mrs.Malarvili,
W/o Nithyananda,
Working as social worker,
Arpana Physcially Handicapped
Child Care Centre,
All saints Church, Compound,
Richmond Town, Near Johnson
Market, Bangalore-5600 25.
(Repted by Sri.KRD, Advocate)
2
C.C.9790/2018
JUDGMENT
The complainant has presented the complaint under Section 200 of Cr.P.C against the accused for the alleged offence punishable under Section 138 of N.I. Act.
2) The brief facts of the complainant's case is that:-
The complainant was a retired employee at HAL. The accused was introduced to the complainant through cousin by name Esther, who was also working as a social worker in the same place where the accused was previously employed at, and as the complainant used to often visit his cousin at his work placed for various reasons during the course of that period within a short span both the complainant and the accused became good friends and got closer day by day your friendship grew stronger and they became family friends . The accused who was well aware about the complainant's financial status, the accused along with her husband approached the complainant for financial support for a total sum of Rs.1,50,000/- in the commitment which needs to be fulfilled and the accused promised to repay the loan amount within 6 months. However, as the complainant could not immediately arrange such a huge amount the complainant told the accused that he will manage to pay the accused as soon as he will be 3 C.C.9790/2018 able to arrange the cash. As promised the complainant managed to arrange the total sum of Rs.1,50,000/- and paid the same amount to the accused in the month of May 2017 in the form of cash by entering into an written agreement and also getting a signature of the accused on a on demand promissory note , consideration receipt. The accused had issued a cheque bearing No. 893285 for security purpose, However, the accused and her husband had promised the complainant that they would return the loan amount as and whenever required by the complainant i.e, within 6 months. The accused after taking the amount from the complainant which was used by the accused to fulfill her family commitment did not keep up the promise of repaying the sum of Rs.1,50,000/- within six months due to which the complainant approached the accused asking her to return the amount given by the complainant as he was in need of cash, however, the accused requested that she requires an additional one month time to repay the total amount. When the complainant demanded the accused to repay, accused has has insisted to present the above said cheque bearing No. 893285 dated 8/1/2018 drawn on Syndicate Bank, Vasanth Nagar Branch, Bengaluru and promised the complainant that there was sufficient cash in her account. When the 4 C.C.9790/2018 complainant presented the cheque for encashment, it was dishonored with an endorsement "Funds Insufficient" on 10/1/2018. Thereafter the complainant issued legal notice on 23/1/2018 calling upon the accused to make payment of the dishonoured cheque amount and the said notice was duly served on the accused. In spite of service of notice, the accused has not complied the same. Hence, complainant is constrained to file this private complaint for the said relief.
3) After receipt of complaint, this court has taken cognizance of the alleged offence and sworn statement of complainant was recorded and process was issued to the accused. She was appeared through her counsel and enlarged on bail and all papers were supplied to her. The substance of plea was recorded and read over and explained in Kannada language to the accused, to which she pleads not guilty and claims to be tried. Hence, posted the case for complainant evidence.
4) In order to prove the complainant case, complainant was examined as P.W.1 and he exhibited Ex.P.1 to Ex.P.8 documents and closed his side. Thereafter, the statement of accused under Section 313 of Cr.P.C is recorded, read over and explained in Kannada language to which accused has denied 5 C.C.9790/2018 the entire incriminating evidence which appears against her Per contra, accused examined as D.W.1 and she exhibited Ex.D.1 to 9 documents and thereafter posted the case for arguments.
5) Heard the arguments on both sides and perused the entire papers.
6) Now, the following points that arises for my consideration are:-
1) Whether the complainant has made out all the ingredients of Section 138 of N.I. Act to prove the guilt of the accused person?
2) What order?
7) My answer to the above points are as follows:-
POINT NO.1 : In the Affirmative.
POINT NO.2 : As per final order, for the following:-
REASONS
8) POINT NO.1:- As the brief facts of the complainant's case as already stated above, hence I need not repeat the same facts once again to avoid the repetition of the same facts.6
C.C.9790/2018
9) To bring home guilt against the accused, the complainant/prosecution must prove the following ingredients of Section 138 of N.I. Act.
i) That there is a legally enforceable debt.
ii) That the cheque was drawn from account of Bank for discharge in whole or in part of any debt or other liability which presuppose a legally enforceable debt;
iii) Cheque so issued had been returned due to insufficiency of funds.
10) To prove the aforesaid ingredients of Section 138 of N.I. Act, the complainant filed his chief affidavit and was examined as P.W.1. In his chief examination affidavit he reiterated the entire averments of the complaint. In support of his case he has exhibited Ex.P.1 to Ex.P.8 documents. Ex.P.1 is the cheque, Ex.P.2 is the Bank endorsement, Ex.P.3 legal notice, Ex.P.4& 5 are Postal receipt, Ex.P.6 & 7 postal tracking, Ex.P.8 on demand promissory note.
11) On careful perusal of the entire oral and documentary evidence, the admitted facts are that there is no dispute that Ex.P.1 cheque is belongs to the accused and it was dishonoured as per Ex.P.2 endorsement and notice has been issued as per Ex.P.3 and it was duly served on accused as 7 C.C.9790/2018 per Ex.P.7. Of course, during the course of evidence accused submits that no notice was served on accused etc.,. but on, perusal of Ex.P.7 postal tracking indicates to the court that item those sent to the accused by the complainant as per Ex.P.3 notice, has been delivered on 31/1/2018. So, there is a catena of decisions by the Hon'ble Apex court and Hon'ble High court of Karnataka that " as per postal shara if notice has been delivered to the proper address, it is nothing but a deemed service. Further, except denial, accused has not proved as well as stated before the court that the address contained in Ex.P.3 notice is not belongs to her etc.., So, in the absence of proof of said fact i.e., she is residing in the address rather than address mentioned in the Ex.P.3 notice, it is not possible to believe the arguments of the accused counsel that no notice was served on accused etc.,. To disprove the complainant, case accused examined as D.W.1 and in her evidence she stated before the court that , since 2014 complainant is known to her and dated 11/11/2014 she borrowed loan of Rs.50,000/- with the complainant in the said transactions, there held on agreement between herself and complainant and she also executed on on demand promissory note and she also exhibited Ex.D1 to 9 documents and she also 8 C.C.9790/2018 stated before the court that in the year 2014 she has issued a cheque in favour of complainant for security purpose etc.,
12) During the course of arguments complainant counsel Sri. SY vehemently argued that complainant has proved his case by way of oral and documentary evidence and on admission in the mouth of D.W.1 and documents placed by the accused are belongs to the previous transactions and present loan borrowed with the complainant in the year 2017. Hence, he prays to convict the accused and he also relied upon the following rulings they are
1. ILR 2000 KAR 2570 Dr.K.G.Ramachandra Gupa Vs Dr.G.Adinarayana
2.ILR 2001 KAR 4127 S.R.Muralidhar Vs Ashok G.Y 3.2002 SCC (CRI) 14 4.2004(3) KCCR 1816 5.2008 AIR SCW 7702 P.Venugopal Vs Madan.P.Sarathi 6.2009(1) SCC (CRI) 661
7.AIR 2010 SC 1898 Rangappa Vs Mohan
8.AIR 2018 SC 3173 Kishan Rao Vs Shankargouda
9.AIR 2019 SC 1876 Rohitbhai Jivanlal Patel Vs State of Gujarath & anr
10.AIR 2019 SC 2446 Bir Singh Vs Mukesh Kumar
11.SLP (CRL).No.(S) 2858/2019 dated 12/7/2019 between Pavan Diliprao Dike Vs Vishal Narendrabhai Parmar 9 C.C.9790/2018 . Per contra, Sri. KRD counsel for accused resisted the said arguments and argued that absolutely there is no capacity and source of income to the complainant and previously accused has borrowed only Rs.50,000/- with the complainant and in the said transactions, she has issued Ex.P.1 cheque in blank nature and the said cheque was misused by the complainant and filed a false case against the accused. The learned counsel further argued that only Rs.20,000/- is due on accused side and complainant has not placed an agreement as alleged in the complaint and chief examination and Ex.P.1 is CTS cheque it is only three months validity and notice was not served on accused, hence he prays to acquittal of the accused.
13) On careful perusal of the entire oral and documentary evidence and arguments addressed by the counsels, the admitted facts are that Ex.P.1 cheque is belongs to the accused and it was dishonoured as per Ex.P.2 endorsement and notice has been issued as per Ex.P.3 and it was duly served on accused as per Ex.P.7 postal tracking. Further, on perusal of the Ex.P.8 on demand promissory note dated 11/5/2017 clearly indicates to the court that at the time of borrowing of loan of Rs.1,50,000/- with the complainant 10 C.C.9790/2018 accused has executed the said document in favour of complainant . Further, it is just and necessary to reproduce the admissions of D.W.1 for the sake of convenience.
¤¦1 ZÉPï £À£ÀßzÀÄ ªÀÄvÀÄÛ CzÀgÀ°ègÀĪÀ ¸À» PÀÆqÀ £À£ÀßzÀÄ. ¤¦1gÀ°è zÀÆgÀÄzÁgÀgÀ ºÉ¸ÀgÀÄ ªÀÄvÀÄÛ ºÀtzÀ ªÉÄÁ§®UÀ£ÀÄß £Á£Éà §gÉ¢zÉÝ JAzÀgÉ ¸ÀjAiÀÄ®è. CzÉà ¸ÀªÀÄAiÀÄzÀ°è ZÉPï eÉÆvÉUÉ £Á£ÀÄ DåArªÀiÁåAqï£ÀÄß §gÉzÀÄ zÀÆgÀÄzÁgÀjUÉ PÉÆnÖzÉÝ JAzÀgÉ ¸ÀjAiÀÄ®è ¤¦8gÀ°ègÀĪÀ ¸À» £À£ÀßzÀ®è ¤r7gÀ°ègÀĪÀ ¸À» ¸ÀºÀ £À£ÀßzÀÝ®è ¤r.6 2014£Éà ¸Á°£ÀzÀÄ JAzÀgÉ ¸Àj . ¤r6 £À£Àß ªÀÄvÀÄÛ zÀÆgÀÄzÁgÀgÀ £ÀqÀÄªÉ DzÀ PÀgÁgÀÄ ¥ÀvÀæ JAzÀgÉ ¸Àj. ¤r7 ¸ÀºÀ ¤r6PÉÌ ¸ÀA§AzÀs¥ÀlÖ zÁR¯É JAzÀgÉ ¸Àj .
ನಿಡಿ 8 ಮತ್ತು 9 ಸಹ ನಿಡಿ 4 ಮತ್ತು 5 ಕ್ಕೆ ಸಂಬಂದಪಟ್ಟ ಪೂರಕ ದಾಖಲೆಗಳು ಎಂದರೆ ಸರಿ So, the said admissions of D.W.1 indicates to the court that Ex.P.1 cheque is belongs to the accused and signature also pertaining to her and she also admitted that Ex.D.6 is for the year 2014 and Ex.D.7 is pertaining to Ex.D6 transactions and she also admitted that Ex.D8&9 are pertaining to Ex.D4 & 5 transactions etc., So, the said admissions of D.W.1 clearly indicates to the court that the documents those have placed by the D.W.1 i.,e Ex.D.1 to 9 are pertaining to the previous transactions. Of course, Ex.D1 to 3, are having following dates i.e., Ex.D.1 is dated 18/7/2017, Ex.D.2 dated 11 C.C.9790/2018 7/8/2017 and Ex.D.3 dated 22/11/2017 the said documents indicates to the court that, about payment of Rs. 6,000/- each and Rs.8,000/- to the account of the complainant in the year 2017 but the rest of the documents placed by the accused as per Ex.D4&6 are held in the year 2014 between the complainant and accused i.e., loan agreement and Ex.D.5 is also on demand promissory note dated 12/11/2014, Ex.D.6 also loan agreement dated 1/12/2014, Ex.D.7 on demand promissory note and Ex.P.8 & 9 also pertaining to the said ExD.4&5 transactions the very facts admitted by the PW1 in her cross-examination. Hence, the said documents placed by the accused have not supports the accused case. Of course, on perusal of Ex.D.1 to 3 documents indicates to the curt that accused has paid certain amount to the complainant and the said fact has not pleaded by the complainant in complaint nor in notice, So, merely accused has deposited Rs.20,000/- as per Ex.D1 to 3 documents it is not sufficient to disbelieve the entire case of the complainant because issuance of cheque by the accused in favour of complainant has admitted by her and signature on Ex.P.1 cheque also admitted by the accused and admittedly Ex.P.3 notice has been delivered to the proper address of accused as per Ex.P7 postal tracking. The only dispute is that accused has issued Ex.P.1 in the year 2014 12 C.C.9790/2018 transactions in blank nature and for security purpose etc., The said facts has not proved by the accused . Of course, on perusal of the Ex.D1 to 9 documents, they are agreements, DP notes clearly indicates to the court that, about held of some money transactions between the complainant and accused since 2014 but the said Ex.D.4 to 9 documents have not confers to the court that about issuance of present Ex.P.1 cheque in favour of complainant in the said transactions. So, in the absence of proof of said facts merely accused has exhibited Ex.D.1 to 9 documents are not sufficient to acquit the accused. Of course, P.W.1 aslo admitted the following points in his cross-examination they are DgÉÆæUÉ gÀÆ.1.50.000/- ¸Á® PÉÆlÖ §UÉÎ ¸Á®zÀ PÀgÁgÀÄ PÉÆnÖzÉÝÃ£É ¸Á®zÀ PÀgÁgÀÄ ¥ÀvÀæªÀ£ÀÄß PÉù£À°è PÉÆnÖ®è JAzÀgÉ ¸ÁQë £À£Àß ªÀQîjUÉ PÉÆnÖzÉÝÉ£É JAzÀÄ ºÉüÀÄvÁÛgÉ r¦ £ÉÆÃmï ªÀÄvÀÄÛ ºÀt ¸ÀAzÀ gÀ¹Ã¢ PÉÆnÖ®è ¸ÁQë £À£Àß ªÀQîjUÉ PÉÆnÖzÉÝÃ£É JAzÀ ºÉüÀÄvÁÛgÉ.
¢B11.5.2017gÀ°è DgÉÆæ ¤¦1 ZÉPÀÄÌ PÉÆnÖzÀÝgÀÄ JAzÀgÉ ¸Àj. Dgï©L ¥ÀæPÁgÀ ¹n¹ ZÉPÀÄÌUÀ¼ÀÄ PÉêÀ® ªÀÄÆgÀÄ wAUÀ¼À ªÁå°rn ªÀiÁvÀæ EzÉ JAzÉgÀ UÉÆwÛ®è ¸ÁQëUÉ CªÀgÀ SÁvÉUÉ ¸ÀA§AzÀs¥ÀlÖ ZÀ®£ïUÀ¼À£ÀÄß vÉÆÃj¹zÁUÀ M¦àzÀÄÝ CzÀ£ÀÄß ¤r1 jAzÀ 3 JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ ¸ÁQë ªÀÄÄAzÀĪÀgÉzÀÄ £Á£ÀÄ rªÀiÁåAqï ªÀiÁrzÀÝjAzÀ CµÀÄÖ ºÀt ºÁQzÁÝgÉ JAzÀÄ 13 C.C.9790/2018 ºÉüÀÄvÁÛgÉ £À£Àß ªÀÄvÀÄÛ DgÉÆæAiÀÄ £ÀqÀÄªÉ 2017 AiÀiÁªÀÅzÉà ºÀtPÁ¹£À ªÀåªÀºÁgÀ £ÀqÉ¢è 2014gÀ°è DVvÀÛ JAzÀgÉ ¸ÀjAiÀÄ®è 2014gÀ°è £Á£ÀÄ ºÀt ¥ÀqÉzÀÄ j¹ªïØ JAzÀÄ §gÉzÀÄPÉÆnÖzÉÝÃ£É JAzÀgÉ ¸ÁQë CzÀPÀÆÌ EzÀPÀÆÌ ¸ÀA§AzÀs E®è JAzÀÄ ºÉüÀÄvÁÛgÉ The said admissions have not supports the accused case and they have not sufficient to disbelieve the entire case of the complainant. Because, admittedly Ex.D.1 to 3 documents are marked in the cross-examination of P.W.1 by way of cnforntatin but as per the said documents accused only deposited Rs.20,000/- to the account of the complainant. So,merely accused has deposited Rs.20,000/- to the account of the accused as per Ex.D.1 to 3 documents, are not sufficient to disbelieve the entire case of the complainant. Accordingly, I am of the considered opinion that as argued by the complainant counsel that complainant has proved his case by way of oral and documentary evidence and on admissions in the mouth of D.W.1. Hence, complainant is entitled for the releifs as sought in the complaint because he has proved the ingredients of section 138 of NI Act i.e, the existence of debts between the complainant and accused and issuance of Ex.P.1 to discharge the legally recoverable debts. Per contra,the documents placed by the accused only supports her case i.e., she has proved before the court that about having of some 14 C.C.9790/2018 money transactions with the complainant since 2014 but they are not sufficient to disbelieve the transactions of complainant those held in the year 2017 as alleged in the complaint and chief examination of P.W.1. Accordingly, the documents placed by the complainant as per Ex.P.1 to 8 i.e, cheque, endorsement, legal notice, postal receipts, postal tracking confers to the court that in the year 2017 he paid Rs.1,50,000/-to the accused, to discharge the said debts accused has issued cheque but it was came to dishonoured and notice was duly served even though accused has not complied hence complainant has constrained to file the present case. Further, the complainant has relied upon the above said rulings, in which their lordships laid down the following principles that:
a) once complainant has discharged the burden by proving about issuance of cheque by the accused to discharge the legally recoverable debts and other modes then presumptions are available in favour of complainant.
b) there is no bar for issuance of successive notice for default in payment of cheque amount.
c) merely accused has shown innocence it is not a ground to disbelieve the complainant case etc., 15 C.C.9790/2018 So, as per the said rulings the complainant has proved his case, hence he is entitled for the reliefs and also the presumptions under section 139 of NI Act are fallen to the case of the complainant. Further, admittedly accused has not rebut the case in a proper manner as stated supra . Hence accused is liable to be punishable under section 138 of NI Act. As such complainant is entitled for the relief as sought for in the complainant . Accordingly I am of the considered opinion that accused is liable to be convicted for the offence punishable under Section 138 of N.I. Act as she is found guilty and I answer this Point No.1 in the affirmative.
14) POINT NO.2:- In view of my discussions as stated supra and my findings on Point No.1., I proceed to pass the following.
ORDER Acting under Section 255 (2) of Cr.P.C, accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act 1881. The accused is sentenced to pay fine of Rs.2,60,000/-
(Rupees Two Lakhs Sixty Thousand Only) and 16 C.C.9790/2018 in default shall undergo simple imprisonment for a period of Two (2) years.
Acting under Section 357 (1) (b) of
Cr.P.C, out of the fine amount the
complainant is entitled for Rs.2,50,000/-
(Rupees Two Lakhs Fifty Thousand Only) fine amount as compensation.
Acting under Section 357 (1) (a) of Cr.P.C, the balance amount of Rs.10,000/- (Rupees Ten Thousand Only) is defrayed to the State for the expenses incurred in the prosecution.
(Dictated to the Stenographer, transcribed by her, corrected, revised and signed then pronounced by me in the open court on this the 13 th day of November 2020 ).
(MANJUNATHA.K.P) XVIII A.C.M.M., BENGALURU.
ANNEXURE
1) LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
P.W.1 : Srinivas
2) LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P.1 : Cheque.
Ex.P.2 : Bank endorsement.
Ex.P.3 : Office copy of demand notice.
Ex.P.4&5 : Postal receipts.
Ex.P.6&7 : Postal tracking details
17
C.C.9790/2018
3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:-
D.W.1 : Malarvili
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED: -
Ex.D.1 to 3 : Three Bank pay-in-slip challans Ex.D4 & 5 : On demand promissory notes Ex.D.6 : Loan agreement Ex.D.7 : On demand promissory note Ex.D.8&9 : Two cheques.
XVIII A.C.M.M., BENGALURU.18
C.C.9790/2018 13/11/2020 Judgment (Judgment pronounced in Open Court vide a separate Order) ORDER Acting under Section 255 (2) of Cr.P.C, accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act 1881. The accused is sentenced to pay fine of Rs.2,60,000/- (Rupees Two Lakhs Sixty Thousand Only) and in default shall undergo simple imprisonment for a period of Two (2) Years.
Acting under Section 357 (1) (b) of Cr.P.C, out of the fine amount the complainant is entitled for Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand Only) fine amount as compensation.
Acting under Section 357 (1) (a) of Cr.P.C, the balance amount of Rs.10,000/- (Rupees Ten Thousand Only) is defrayed to the State for the expenses incurred in the prosecution.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
XVIII A.C.M.M., BENGALURU.
19 C.C.9790/2018