Bangalore District Court
Smt.Varalakshmi.R vs Smt.Padmavathi.A.V on 2 November, 2022
1
C.C.No.5692/2019
KABC030171512019
Presented on : 08-03-2019
Registered on : 08-03-2019
Decided on : 02-11-2022
Duration : 3 years, 7 months,
25 days
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated : This the 02nd day of November 2022.
Present: Sri.N.M. RAMESHA, B'Com.,L.L.M.
XVI Addl.C.M.M., Bengaluru City.
Case No. C.C.No
: C.C.No.5692/2019
Complainant : Smt.Varalakshmi.R.
Aged 38 years,
W/o.Late.Ramesh,
Residing at # 19/2,
1st Cross Road,
Byrasandra,
Bengaluru-560 011.
(By Sri.D.Prabhakar Adv,)
V/s
Accused : Smt.Padmavathi.A.V.
Aged about 47 years,
W/o.Ramesh A.H.,
# 47, 7th Main, Tyagarajanagar,
2
C.C.No.5692/2019
Basavanagudi,
Bangalore-560 028.
Also at:
No.18, 5th Main,
5th Cross, Lakshmanappa
Garden, BSK 3rd Stage,
Bengaluru City,
Karnataka.
(By Sri.C.D.Narasimhan,
Adv.,)
Case instituted : 20.02.2019
Offence complained of : U/s 138 of N.I Act
Plea of Accused : Pleaded not guilty
Final Order : Accused is Convicted
Date of order : 02-11-2022
JUDGMENT
The Complainant has filed this complaint against the accused under the provisions of Sec.200 of the Code of Criminal Procedure, for the offence punishable U/Sec.138 of the Negotiable Instruments Act.
2. The case of the Complainant is as under:-
The complainant and accused are known to each other since several years. The Complainant and accused have been working together in Vasan Health Care Private Limited for past several years. The accused has 3 C.C.No.5692/2019 approached the complainant for hand loan of Rs.6 lakhs for urgent financial emergency. The complainant has paid Rs.6 lakhs to the accused on 10.05.2018. The accused has agreed to repay the loan with interest at the rate of 18% per annum. The accused has repaid a loan of Rs.50,000/- and executed a loan agreement dated 05.12.2018 in favour of the complainant acknowledging the loan and agreed to repay the balance loan amount of Rs.5,50,000/- in the presence of Anand Kumar G.L. and Selvakumar. The accused has also repaid a sum of Rs.42,000/- by way of cash and Rs.3000/- by way of bank transfer on 31.12.2018.
3. It is further averred in the complaint that on demand for repayment of balance loan amount, the accused has issued a cheque bearing No.444932, dated 08.01.2019 for Rs.5,05,000/- drawn on Indusind Bank, Basavanagudi branch, Bengaluru. The complainant has presented the cheque before State Bank of India, Nimhans branch, Bengaluru for encashment. But the said cheque was dishonoured for want of sufficient funds in the account of the accused vide bank endorsement dated 09.01.2019. The complainant got issued a legal notice on 01.02.2019 calling upon the accused to repay the loan within 15 days from the date of receipt of legal notice. The legal notice was served on 4 C.C.No.5692/2019 the accused on 02.02.2019. But in spite of service of legal notice, the accused has failed to pay the cheque amount and committed an offence punishable U/s.138 of N.I.Act. Hence, this complaint.
4. After presentation of complaint, it was ordered to be registered as PCR No.2493/2019 vide order dated 22.02.2019.
5. The sworn statement of the complainant has been recorded and the documents were got marked as per Ex.P.1 to P.9.
6. My Learned Predecessor in office having heard the arguments of learned counsel for complainant and having satisfied with the complaint averments, sworn statement of complainant and the documents at Ex.P.1 to P.9 and having satisfied with the prima facie materials placed on record has taken the cognizance for the offence punishable U/s.138 of N.I.Act and the case was ordered to be registered as CC.No.5692/2019 and process were ordered to be issued agianst the accused vide order dated 06.03.2019.
7. On service of summons, the accused has appeared before the court through her learned counsel and obtained the bail vide order dated 14.05.2019 by 5 C.C.No.5692/2019 depositing a cash surety of Rs.5000/- vide Q.No.2206/2019 dated 14.05.2019. The copies of all the prosecution papers were supplied to the accused.
8. Plea of accused for the offence punishable U/s.138 of N.I.Act has been recorded and the substance of accusation has been read over and explained to the accused in the language known to her. The accused has pleaded not guilty, but claims to be tried.
9. In order to establish the guilt against the accused, the complainant got herself examined as PW-1 and got the documents marked as Ex.P.1 to P.9. The complainant has also examined two witnesses namely Anand and Selvakumar who are the witnesses to the loan agreement as PW-2 and PW.3.
10. The statement of accused as contemplated under the provisions of Section 313 of Cr.P.C has been recorded and the incriminating evidence as such forthcoming against the accused in the evidence of PW-1 to PW-3 and documents has been read over and explained to the accused in the language known to her. But the accused has denied the entire evidence of PW-1 to PW-3 and documents at Ex.P.1 to P.9. The accused did choose to enter the defence evidence.
6C.C.No.5692/2019
11. In order to substantiate her defence, the accused got herself examined as DW-1 and got the documents marked as Ex.D.1 to D.3.
12. I have heard the arguments of learned counsels for both sides. The learned counsel for the complainant has also filed notes of arguments. I have carefully perused the oral and documentary evidence placed on record.
13. Now, the points that would arise for my consideration are as under:-
1. Whether the complainant proves that the accused has issued a cheque bearing No.444932 dated 08.01.2019 for Rs.5,05,000/-drawn on Indusind Basavanagudi branch, Bengaluru in her favour towards the legally recoverable debt and on presentation of cheque for encashment before the State Bank of India, Nimhans Branch, Bengaluru, it was came to be dishonoured for want of sufficient funds in the account of the accused vide bank memo dated 04.01.2019 and in spite of issuance of legal notice dated 01.02.2019 and in spite of service of legal notice on 02.02.2019, the accused has failed to pay the cheque amount and thereby committed offence punishable U/s.138 of N.I.Act?
2. What Order?7
C.C.No.5692/2019
14. On considering and assessing the oral and documentatry evidence placed on record, now my answers to the above points are as under :
Point No.1: In the Affirmative.
Point No.2: As per final order for the following :-
REASONS
15. Point No.1 : The provisions of Sec.20 of Negotiable Instrument Act deals about Inchoate Stamped Instruments. As per this provisions of law, where one person signs and delivers to another a paper stamped in accorance with the law relating to negotiable instrements then in force in India, and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima-facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, or any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instruemnt, in the capacity in which he signed the same, to any holder in due course for such amount.
16. The provisions of Sec.118 of Negotiable Instrument Act deals about presumptions as to 8 C.C.No.5692/2019 neogtiable instruments. As per this provisions of law, unit the contrary is proved, the following presumptions shall be made:-(a) of consideration: that every negotiable instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transfered, was accepted, indorsed, negotiated or transferred for considertaion: (b) as to date: that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance- that every accepted bill of exchange was accpted within a reasonable time after its date and before its maturity. (d) as to time of transfer-that every transfer of a negotiable instrument was made before the maturity; (e) as to order of indorsement; that the indorsements appearing upon a negotiable instrument were made in the order in which they apear thereon; (f) as to stamps-that a lost promissory note, bill of exchange or cheque was duly stamped and (g) that holder is a holder indue course- that the holder of a negotiable instrument is a holder in due course.
17. The provisions of Sec.138 of Negotiable Instrument Act deals about dishonour of cheque for insufficiency etc., of funds in the accounts. As per this provisions of law, where any cheque drawn by a person on an account maintained by him with a banker for 9 C.C.No.5692/2019 payment of any amount of money to another person from out of that account for the discharge, in whole or inpart, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other proviosn of this Act, be punished with imprisonment for a term which may be extended to two years or with fine which may extend to twice the amount of the cheque or with both.
18. As per the proviso attached to the above said provisions of law, nothing contained in this section shall apply unless-(a) the cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier. (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing , to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and (c) the drawer of such cheque fails to make 10 C.C.No.5692/2019 the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
[ 19. The provisions of Sec.139 of Negotiable Instrument Act deals about presumption in favour of holder. As per this provisions of law, it shall be presumed, unles the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, or any debt or other liability.
20. Now keeping the above said provisions of Section 20, 118, 138 and 139 of N.I.Act, in mind, let us consider as to whether the complainant could able to comply the provisions of Section 138 of N.I.Act, so as to raise or to draw the presumption in her favour as per Section 118 and 139 of N.I.Act.
21. It is averred in the complaint and stated by PW-1 in her oral evidence that she and accused were known to each other since several years and they have been working together at Vasan Health Care Private Ltd., Bengaluru and the accused has approached her for hand loan of Rs.6 lakhs to meet her urgent financial emergency and therefore, she has paid a loan of Rs.6 11 C.C.No.5692/2019 lakhs to the accused on 10.05.2018. It is further averred in the complaint and stated by PW-1 in her oral evidence that the accused has repaid a sum of Rs.50,000/- and executed an agreement dated 05.12.2018 agreeing to repay the balance loan of Rs.5,50,000/- in the presence of Anand Kumar G.L. and Selvakumar. The accused has also repaid a sum of Rs.42,000/- by way of cash and Rs.3,000/- by way of bank transfer on 31.12.2018.
22. It is further averred in the complaint and stated by PW-1 in her oral evidence that the accused has issued a cheque bearing No.444932 dated 08.01.2019 drawn on Indusind Bank, Basavanagudi branch, Bengaluru in her favour towards the balance loan amount and therefore, she has presented the cheque before the State Bank of India, Nimhans branch, Bengaluru for encashment and it was came to be dishonoured for want of sufficient funds in the account of the accused as per bank memo dated 09.01.2019 and therefore, she got issued a legal notice on 01.02.2019 calling upon the accused to pay the cheque amount within 15 days from the date of receipt of legal notice, which was served on the accused on 02.02.2019, but in spite of service of legal notice, the accused has failed to pay the cheque amount and therefore, she has presented the complaint before the Court.
12C.C.No.5692/2019
23. The complainant has produced the cheque dated 08.01.2019, bank endorsement dated 09.01.2019, legal notice dated 29.01.2019, postal receipts dated 01.02.2019, postal acknowledgement dated 02.02.2019, loan agreement dated 05.02.2018 and they are marked at Ex.P.1 to P.9.
24. PW-2 and PW-3 have stated in their evidence that they and complainant and accsued have been working in the same company and therefore, they are known to each other. The complainant has paid a loan of Rs.6 lakhs to the accused in their presence out of which the accused has already paid Rs.50,000/- and executed a loan agreement in the year 2018 in their presence as per Ex.P.8 and they have put their signatures and thereafter the accused has issued a cheque for balance amount of Rs.5,05,000/- and on presentation of cheque, it was came to be dishonoured for want of sufficient funds in the account of the accused and therefore, they have requested the accused to repay the cheque amount.
25. The accused has not seriously disputed either the loan transaction or issuance of cheque or presentation of cheque for encashment or dishonour of cheque for want of sufficient funds in her account or 13 C.C.No.5692/2019 issuance of legal notice or service of legal notice. In fact, there is no specific suggestions to PW-1 to 3 to deny these facts with respect to compliance of Section 138 of N.I.Act. The accused in her entire evidence has not specifically denied either loan transaction or issuance of cheque or presentation of cheque or dishonour of cheque or issuance of legal notice or service of legal notice.
26. On the other hand, DW-1 has admitted about the loan transaction in the year 2017-18 and she has also admitted that the cheque vide Ex.P.1 is belongs to her and the signature found on Ex.P.1 also belongs to her and she has also admitted that the signature found on Ex.P.6 and P.7 are belongs to her and she has also admitted about the refund of Rs.50,000/- and Rs.45,000/- on two occasions. From these material placed on record, it is crystal clear that the accused by necessary implication has admitted the issuance of cheque and the cheque belongs to her and it has been drawn by her on an account maintained by her in her banker and the signature on the cheque including the service of legal notice. Under these circumstances, admission is the best proof for the complainant to comply the mandates of Section 138 of N.I.Act.
14C.C.No.5692/2019
27. However, on careful perusal of complaint averments, oral evidence of PW-1 to PW-3 and documentary evidence at Ex.P.1 to P.9. It clearly establishes that the accused has availed a loan of Rs.6 lakhs from the complainant on 10.05.2018 out of which she has already repaid Rs.50,000/- and executed an agreement vide Ex.P.8 dated 05.12.2018 agreeing to repay the balance loan of Rs.5,50,000/- in the presence of PW-2 and 3. The materials on record further establishes that the accused has also repaid a sum of Rs.42,000/- by way of cash and Rs.3,000/- by way of bank transfer on 31.12.2018 and she has issued a cheque vide Ex.P.1 dated 08.01.2019 for Rs.5,05,000/- towards the balance repayment of loan and on presentation for encashment, it was came to be dishonoured for want of sufficient funds in the account of the accused as per Bank endorsement vide Ex.P.2 and therefore, the complainant got issued a legal notice vide Ex.P.3 dated 01.02.2019 and it was served on the accused as per Ex.P.6 and P.7 vide dated 02.02.2019. But the accused in spite of service of legal notice has failed to pay the cheque amount and therefore, the complainant has presented the complaint before the Court on 20.02.2019.
15C.C.No.5692/2019
28. It is pertinent to note here that the cheque is dated 08.01.2019 which has been presented before the bank within its validity for enashment. The said cheque was came to be dishonoured for want of sufficient funds in the account of the accused. The complainant has also issued a legal notice within stipulated period from the date of receipt of the bank endorsement. But in spite of service of legal notice, the accused has failed to pay the cheque amount and therefore, the complainant has presented the complaint before the Court on 20.02.2019 which was well within time.
29. As already stated above, the accused has not disputed the issuance of cheque and also her signature on the cheque. So, it is crystal clear that the complainant has complied all the mandates of Section 138 of N.I.Act by adducing oral evidence of PW-1 to PW- 3 and by producing documents at Ex.P.1 to P.9. Under these circumstances, the presumption is in favour of the complainant U/s.118 and 139 of N.I.Act. Because, it is well settled position of law that when once the accused has admitted the issuance of cheque and her signature on the cheque, then the presumption is available in favour of the complainant U/s.118 and 139 of N.I.Act. Therefore, when once the complainant has fulfilled the mandates of Section 138 of N.I.Act, then this Court has 16 C.C.No.5692/2019 no option but to draw the presumption in favour of the complainant U/s.118 and 139 of N.I.Act.
30. Admittedly, the presumption available in favour of the complainant U/s.118 and 139 of N.I.Act are not conclusive proof, but they are rebuttable in nature. Therefore, when once the complainant has fulfilled the mandates of Section 138 of N.I.Act and when once the Court has drawn the presumption in favour of the complainant U/s.118 and 139 of N.I.Act, then the onus shifts on the accused to rebut the statutory presumption available in favour of the complainant U/s.118 and 139 of N.I.Act.
31. The learned counsel for the complainant has argued with force that the complainant has fulfilled all the mandates of Section 138 of N.I.Act by adducing oral evidence of PW-1 to PW-3 and by producing the documentary evidence at Ex.P.1 to P.9 which clearly establishes the loan transaction of Rs.6 lakhs by the complainant to the accused on 10.05.2018 and repayment of part loan of Rs.50,000/- on 05.12.2018 and Rs.45,000/- on 31.12.2018, execution of loan agreement vide Ex.P.8 for payment of balance amount in the presence on PW-2 and PW-3 and issuance of cheque 17 C.C.No.5692/2019 for balance repayment of Rs.5,05,000/- and on presentation of cheque, it was came to be dishonoured for want of sufficient funds in the account of the accused and in spite of issuance of legal notice and service of legal notice, the accused has failed to pay the cheque amount and therefore, the complainant has presented the complaint before the Court within time and thereby the complainant has proved the guilt against the accused for the offence punishable U/s.138 of N.I.Act.
32. It is further contended that the accused has not disputed the issuance of cheque and her signature on the cheque including service of legal notice. But, the accused has taken a defence that she has availed a loan of Rs.1 lakh only in the year 2017 and she has already repaid the said loan out of PF amount in the year 2017- 18 and she has issued the cheque in question towards the security purpose and in spite of repayment of loan and in spite of demand for return the cheque, the complainant hasfailed to return the cheque and misused the cheque and therefore, she has lodged the complaint before the Jayanagar Police station as per Ex.D.1 and the police have issued endorsement vide Ex.D.2 and the complainant has also given statement as per Ex.D.3 and therefore, she is not liable to pay any amount to the 18 C.C.No.5692/2019 complainant, but the accused has not proved her defence before the Court and she has not taken any further action against the complainant for misuse of cheque, but the complainant has proved the guilt against the accused and hence, the accused is liable for conviction for the offence punishable U/s.138 of N.I.Act.
33. In support of his submission, the learned counsel for the complainant has relied upon a decision reported in AIR 2010 SC 1898 in between Rangappa Vs.Mohan, wherein while dealing with the provisions of Section 139 of N.I.Act, the Hon'ble Supreme Court has pleased to held that the presumption mandated by Section 139 of N.I.Act does include the existence of legally enforceable debt or liability. However, there can be no doubt that there is initial presumption in favour of complainant and that the accused in order to rebut the presumption U/s.139 of N.I.Act, the standard of proof for doing so is that of preponderance of probabilities.
34. Per contra, the learned counsel for the accused has vehemently contended that the oral evidence of PW-1 to PW-3 and documentary evidence at Ex.P.1 to P.9 do not establish that the complainant has complied the mandates of Section 138 of N.I.Act and 19 C.C.No.5692/2019 therefore, the presumption is not in favour fo the complainant. The evidence adduced by the complainant do not establish the loan transaction of Rs.6 lakhs and issuance of cheque in question towards the legally recoverable debt. But on the other hand, the oral evidence of DW-1 coupled with documentary evidence at Ex.D.1 to D.3 clearly establishes that the accused has availed a loan of Rs.1 lakh only in the year 2017 and repaid the same in the year 2017-2018 from the PF amount and the accused has issued a cheque in question towards the security purpose which has been misused by the complainant even after repayment of entire loan amount of Rs.1 lakh. The
35. It is further conteded that the accused has raised a probable defence and also proved the same before the Court by adducing oral evidence of DW-1 and also by producing the documentary evidence at Ex.D.1 to D.3. But the complainant has failed to prove the charges levelled against the accsued and therefore, the accused is entitled to an order of acquittal.
36. In support of his submission, the learned counsel for the accused has relied a upon a decision rendered by the High Courts of Punjab and Harayana in Cr.R.P. No.849/2021 between Premasingh Vs.State 20 C.C.No.5692/2019 of Harayana and others, wherein while dealing with the provisions of Section 138 of N.I.Act, the Hon'ble High Courts of Punjab has pleased to held that it is a settled proposition of law that presumption U/s.139 of the N.I.Act is the presumption of law and such a presumption is rebuttable presumption.
37. The learned counsel for the accused has also relied upon a decision reported in 2020 (3) KCCR 2373 in between Vishal Vs.Prakash Kadappa Heggannavar, wherein while dealing with the provisions of Section 138 of N.I.Act, the Hon'ble High Court of Karnataka has pleased to held that when no evidence is let in regarding lending of money to a huge extent, then the accused is entitled to acquittal.
38. Now keeping the arguments canvassed by learned counsels of both and principles laid down in the said decisions cited on behalf of both sides, let us consider as to whether the accused could able to rebut the presumption available in favour of the complainant U/s.118 and 139 of N.I.Act.
39. It is the evidence of DW-1 who is the accused that she knows the complainant since 8 years and she was working in Vasan Eye Care and the complainant was also working in Vasan Eye Care and she has availed 21 C.C.No.5692/2019 a loan of Rs.1 lakh from the complainant in the year 2017 and repaid the same in the year 2017-18 out of the PF amount. It is the further evidence on of DW-1 that she had issued the cheque in question to the complainant towards the security purpose and after repayment of loan, the complainant failed to return the cheque and she left the job in the month of December 2019 and thereafter, the complainant has presented the cheque for encashment and she has filed false case against her and therefore, she has lodged the complaint against the complainant before the Jayanagar Police Station and therefore, she is not liable to pay the cheque amount as there was no legally recoverable debt. The accused has produced the certified copies of complaint, police endorsement dated 12.01.2019 and statement of complainant dated 11.01.2019 and they are marked at Ex.D.1 to D.3.
40. But, though the accused has taken this bald contention, same has not been amplified before the Court in any manner. The accused neither produced cogent documentary evidence nor adduced any independent evidence or elicited anything in the evidence of PW-1 to PW-3. No doubt, it is suggested to PW-1 that the contents of the cheque vide Ex.P.1 are different and not one and the same; that she has 22 C.C.No.5692/2019 concocted and created the document at Ex.P.8; that the accused did not put her signagure on Ex.P.8; that the accused did not borrow amount of Rs.5,05,000/-; that the accused has already paid loan of Rs.1 lakh; that she has obtained blank cheque from the accused for security purpose; that though the accused has already repaid loan; she has filed the false case by using blank cheque; that the accused has lodged a complaint against her before Jayanagar Police Station and she is deposing false evidence before the Court.
41. It is also suggested to PW-2 and 3 that they are deposing false evidence to help the complainant; that the accused has already repaid loan of Rs.1 lakh obtained from the comlainant; that the accused has issued the cheque in question vide Ex.P.1 to the complainant towards the security purpose; that the cheque was filled on 05.12.2018; that though they do not know about the case, they are deposing false evidence before the Court.
42. But all these material suggestions have been specifically denied PW-1 to PW-3. Therefore, it is said that the denied suggestions are always remained as suggestions only and not come in the way of accused either to substantiate her defence or to rebut the 23 C.C.No.5692/2019 statutory presumption available to the complainant U/s.118 and 139 of N.I.Act or to falsify the case made out by the complainant or to falsify the oral evidence of PW-1 to PW-3 or the documentary evidence at Ex.P.1 to P.9. Nothing is elicited in the evidence of PW-1 to PW-3 to disprove their evidence and to discard the documentary evidence at Ex.P.1 to P.3 and to substantiate the defence taken by the accused.
43. But on the other hand, it is forthcoming in the evidence of PW-1 that she and accused including PW-2 and PW-3 are known to each other since more than 8 years and they were working in the same company namely Vasan Health Care Pvt Ltd., and they are known to each other. The complainant has paid Rs.6 lakhs to the accused for her financial necessities and therefore, she has issued the cheque in question towards the said legally recoverable debt. It is also forthcoming in the evidence of PW-1 that after came to know about lodging of complaint by the accused before Jayanagar Police Station, She has approached the Jayanagar Police Station and given statement stating that the accused has issued the cheque in question towards the legally recoverable debt of Rs.6 lakhs and therefore, the Jayanagar Police have recorded her statement and adviced the accued not to file the false complaint against 24 C.C.No.5692/2019 the complainant and closed the case and issued an endorsement.
44. It is also forthcoming in the evidence of PW-1 that she was getting salary from the Vasan Health Care Pvt Limited and she was sufficient source of income so as to lend loan to the accused and it is who the accused on her own issued the cheque for legally recoverable debt of Rs.6 lakhs. It is also forthcoming in the evidence of PW-1 that the accused has already paid Rs.50,000/- and executed document at Ex.P.8 and she has also paid Rs.45,000/- and issued the cheque in question for balance amount of Rs.5,05,000/-.
45. It is also forthcoming in the evidence of PW-2 and 3 that they were working in Vasan Health Care Pvt. Limited along with the complainant and accused and therefore, they are known to each other and the accused has availed loan of Rs.6 lakhs from the complainant out of which she has already paid Rs.50,000/- and issued the cheque in question towards the balance loan of Rs.5,05,000/-and they are aware about the presentation of cheque, dishonour of cheque for want of sufficient funds in the account of the accused and therefore, they have adviced the accused to repay the cheque amount to the complainant. The oral evidence of PW-1 to PW-3 is 25 C.C.No.5692/2019 very much consistent and inconfirmity with documents at Ex.P.1 to P.9 and therefore, there are no reasons to disbelive or to discard the oral evidence of PW-1 to PW-3 and documentary evidence at Ex.P.1 to P.9.
46. The accused all the while in her oral evidence has stated that she has availed loan of Rs.1 lakh only and issued the cheque in question towards the security purpose and she has already repaid loan of Rs.1 lakh, but the complainant did not return the cheque in question and filed the false case and therefore, she has lodged a complaint before the Jayanagar Police Station. But during the course of her cross-examination, DW-1 has admitted that she has been working in Vasan Health Care Pvt. Limited and she knows to read and write Kannada and English and she used to read over contents of the documents before putting signaure on the documents. It is also admitted by DW-1 that she and complainant including PW-2 and PW-3 are all working at Vasan Health Care Pvt. Limited Jayanagar branch, Bengaluru.
47. It is also admitted by DW-1 that cheque vide Ex.P.1 belongs to her and her signature finds a place on the cheque and also postal acknowledgement vide Ex.P.6 and P.7 and she has also received the notice issued by 26 C.C.No.5692/2019 the complainant. It is also admitted by DW-1 that she has already paid Rs.50,000/- to the complainant on 05.12.2018 and notice vide Ex.P.3 was served on her. It is also admitted by DW-1 that Ex.D.1 do not indicate the date and the Jayanagar Police have not taken action against the complainant based on complaint vide Ex.D.1 and she has also not taken any further action against the complainant and the police have recorded the statement of complainant on 11.01.2019 and she did not read over the contents of statement vide Ex.D.3. All these material facts admitted by DW-1 would indicate that she is aware about the execution of document at Ex.P.1 and P.8 including availment of loan of Rs.6 lakhs and she has repaid loan of Rs.95,000/- and she is due for Rs.5,05,000/- and therefore, she has issued the cheque in question towards balance loan of Rs.5,05,000/-. However, the accused has taken a contention that she has availed only Rs.1 lakh and she has already repaid same without any documents.
48. It is pertinent to note here that if really the accused has availed loan of Rs.1 lakh only and she has issued the cheque in question for security purpose and if really the accused has repaid loan and the complainant has misused the cheque in question, then the accused could have definitely replied the notice issued by the 27 C.C.No.5692/2019 complainant. But she has not done so. It is not the defence of the accused that notice has not been served on her. On the other hand, DW-1 has admitted about the issuance of legal notice and also its service. But she did not choose to reply the notice.
49. Be that as it may, after lodging the complaint by the accused against complainant before Jayanagar Police Station, the complainant has voluntarily approached the Jayanagar Police Station and disclosed about the availment of loan of Rs.6 lakhs by the accused and repayment of Rs.95,000/- and also balance of Rs.5,05,000/- due from the accused including issuance of cheque towards the balance amount of Rs.5,05,000/-. Therefodre, the Jayanagar Police Station have recorded the statement of complainant and have adviced the accused and closed the case and issued an endorsement. But as admitted by DW-1 in her evidence that she is neither replied notice nor taken any further action against the complainant for misuse of cheque. No explanation as such forthcoming in the materials placed on record.
50. It is also pertinent to note here that till the presentation of cheque and its dishonour and issuance of legal notice, the accused has been kept quite for all 28 C.C.No.5692/2019 these days without taking any steps against the complainant for misuse of cheque. It is only after presentation of cheque for encashment and it is only after dishonour of cheque for want of sufficient funds in the account of the accused and it is only after issuance of legal notice and service of legal notice, the accused has lodged a complaint against the complainant before Jayanagar Police Station who have recorded the statement of complainant and closed the case. No explanation as such forthcoming in this regard for delay. In the absence of such an explanation an adverse inference has to be drawn against the defence taken by the accused. Therefore, only on the basis of evidence of DW-1 and documents at Ex.D.1 to D.3, it cannot be inferred or come to the conclusion that the accused has availed Rs.1 lakh only and issued the cheque in question towards the security purpose and the accused has already repaid the loan and the complainant has misused the cheque.
51. On appreciation of entire oral and documentary evidence placed on record, it is found that the accused has issued a cheque vide Ex.P.1 to the complainant towards the legally recoverable debt of Rs.5,05,000/- and on presentation of cheque for encashment, it was came to be dishonoured for want of 29 C.C.No.5692/2019 sufficient funds in the account of the accused as per bank memo vide Ex.P.2 and therefore, the complainant has issued a notice vide Ex.P.3 within stipulated period from the date of receipt of bank memo which has been served on the accused as per Ex.P.6 and P.7. But in spite of service of legal notice, the accused neither replied notice nor made arrangement for payment of cheque amount and therefore, the complainant without any alternative way has presented the complaint before the Court on 20.02.2019 which was well within time.
52. The accused has not disputed the fct that the cheque belongs to her and also her signature. It is well settled position of law that when once the accused has admitted the issuance of cheque and her signature on the cheque, naturally, the presumption is availalbe in favour of the complainant U/s.118 and 139 of N.I.Act. The complainant has fulfilled all the mandates of Section 138 of N.I.Act by adducing oral evidence of PW-1 to PW- 3 and by producing documentary evidence at Ex.P.1 to P.9. But the accused has failed to prove the defence taken by her with legal evidence before the Court. Even assuming for the sake of argument that the accused has issued the cheque in question towards the security purpose, then the accused cannot escape from the liability of penal provisions of Section 138 of N.I.Act.
30C.C.No.5692/2019 Because, it is now well settled position of law that even cheque issued for security purpose also comes under the concept of other liability and therefore, the accused is liable to pay the amount to the complainant U/s.138 of N.I.Act.
53. Therefore, the arguments of the learned counsel for the accused that the accused has availed loan of Rs.1 lakh only and issued the cheque in question towards the security purpose and the accused has already repaid loan of Rs.1 lakh to the complainant, but the complainant failed to return the cheque and misused cheque by filing complaint and the accused has raised a probable defence and also proved the same before the Court by adducing oral evidence of DW-1 and by producing documentary evidence at Ex.D.1 to D.3, but the complainant has failed to establish the charge against the accused and therefore, the accused is entitled an order of acquittal is not sustainable under law and therefore, cannot be accepted and the decisions cited in this regard are also not applicable to the present facts and circumstances of the case.
54. But on the other hand, there is some legal force in the submission of learned counsel for the complainant that the complainant has fulfilled all the 31 C.C.No.5692/2019 mandates of Section 138 of N.I.Act by adducing oral evidence of PW-1 to PW-3 and by producing the Ex.P.1 to P.9 which clearly establishes the loan transaction between the complainant and accused including issuance of cheque towards the legally recoverable debt and the complainant has proved the guilt against the accused for the offence punishable U/s.138 of N.I.Act and the accused did not dispute the issuance of cheque and also her signature on the cheque and therefore, the presumption is in favour of the complainant U/s.118 and 139 of N.I.Act and the accused has failed to prove the defence before the Court and hence, the accused is liable for payment of cheque amount as per Section 138 and the decision in this regard is also applicable to the present fact and circumstances of the case.
55. Therefore, for the reasons discussed above, this Court is of the considered view that the materials placed on record clearly establishes the guilt against the accused for the offence punishable U/s.138 of N.I.Act. Hence, I hold that the complainant has proved the charge against the accused for the offence punishable U/s.138 of N.I.Act. Hence, I answer the point No.1 in the Affirmative.
32C.C.No.5692/2019
56. POINT. No.2:- The provisions of Section 138 of N.I.Act provides punishment for imprisonment for a term which may be extended to two years or with fine which may extend to twice the amount of cheque or with both. In the present case, the accused has availed the loan of Rs.6 lakhs from the complainant on 10.05.2018 for her urgent financial and personal needs out of which she has already paid total amount of Rs.95,000/- and the accused is due for balance amount of Rs.5,05,000/- and the accused has also executed a loan agreement in this regard and issued the cheque towards the balance amount. The complainant and accused are known to each other since long time as they were working in same Company namely Vasan Health Care Private Ltd., Therefore, considering the nature of loan transaction between complainant and accused including facts and circumstances of the case and regard being had to the time taken for disposal of the case, this Court is of the considered view that if the following sentence is awarded, then it would meet the ends of justice. Hence, in view of my findings on point No.1, I proceed to pass the following:-
O RDE R The accused is found guilty for the offence punishable U/s.138 of 33 C.C.No.5692/2019 Negotiable Instruments Act.
Hence, acting U/sec.255(2) of Cr.P.C, the accused is convicted and sentenced to pay fine of Rs.7,00,000/-(Rupees Seven Lakhs Only), in default of fine amount, she shall undergo simple imprisonment for six months for the offence punishable under section 138 of N.I.Act.
Out of the fine amount collected from the accused, an amount of Rs.6,75,000/- shall be paid to the complainant as compensation U/s.357 of Cr.P.C. and the remaining fine of Rs.25,000/- shall be adjusted towards the cost of state expenses.
The bail bond of the accused shall be in force till the appeal period is over as contemplated under the provisions of Sec.437(A) of Cr.P.C.
The cash surety of Rs.5,000/-
deposited by the accused vide Q.No.2260/2019 dated 14.05.2019 shall be refunded to the accused after appeal period is over with due identification.
Office to supply the copy of the Judgement to the accused forthwith at free of cost.
(N.M.RAMESHA) XVI ACMM, Bengaluru City.34
C.C.No.5692/2019 ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Varalakshmi.R. P.W.2. : Anand. P.W.3. : Selvakumar.
2. List of documents exhibited on behalf of the Complainant:-
Ex.P.1 : Original Cheque. Ex.P.1(a) : Signature of the Accused. Ex.P.2 : Bank Memo. Ex.P.3 : Copy of Legal Notice. Ex.P.4 & P.5 : Postal Receipts. Ex.P.6 & P.7 : Postal Acknowledgements. Ex.P.8 : Loan Agreement. Ex.P.8(a) & b : Signatures. Ex.P.9 : Complaint. Ex.P.9(a) : Signature of Witness.
3. List of witness/s examined on behalf of the Accused:-
DW-1 : Padmavathi.A.V.
35
C.C.No.5692/2019
4. List of documents exhibited on behalf of the Accused:-
Ex.D.1 : Complaint before Jayanagar P.S. Ex.D.2 : NCR/Acknowledgement. Ex.D.3 : Complaint dated 11.01.2019.
(N.M.RAMESHA)
*mbh* XVI ACMM, Bengaluru City.