Bangalore District Court
Smt.L.Y. Manjula vs Ms. Vinutha .N on 9 November, 2021
1
C.C.No. 12555/2016 J
THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 9th day of November, 2021
Present: Sri.S.B.HANDRAL, B.Sc., L.L.B(SPL).,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.12555/2016
Complainant : Smt.L.Y. Manjula,
W/o V. Srinivasaiah,
Aged about 47 years,,
R/at No.794, 14th Cross,
J.P.Nagar 1st Phase,
Bengaluru - 560 078.
Rep. by Sri. Eshwar R. Naik Adv.,)
Vs
Accused : Ms. Vinutha .N.,
D/o N. Nagaraj,
Aged about 25 years,
R/at No.65, 17th Cross,
J.P. Nagar 6th Phase,
Bengaluru - 560 078.
(Rep. by Sri. Narayan L. Naik Adv.,)
Case instituted : 13.05.2016
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
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C.C.No. 12555/2016 J
Final Order : Accused is convicted
Date of order : 9.11.2021
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, she and the accused known to each other and friends since last several years, the accused had approached her on 25.12.2015 and requested her to lend the hand loan of Rs.9 lakhs for establishing a shop and doing the business in selling sarees, dress materials and ladies wears in J.P. Nagar, Bengaluru, initially she has not agreed to lend the above loan to the accused as the amount was heavy and she could not able to arrange for the same, but the accused went on pestering her to lend loan amount and also assured that, she would execute the On Demand Promissory Note and Money Receipt on stamp paper and also issue postdated cheques as security for the above loan amount. It is further contended by the complainant that, she has agreed and mobilized the funds by borrowing amount from relatives, friends 3 C.C.No. 12555/2016 J and husband and lent the loan amount of Rs.9 lakhs to the accused by way of cash on 25.12.2015 at her house, in turn the accused has received and acknowledged the above loan amount of Rs.9 lakhs from her in cash on 25.12.2015 and in support of the loan amount, the accused had voluntarily executed the On Demand Promissory Note and Money Receipt duly signed by her on stamp paper on 25.12.2015 in the presence of two witnesses and among which, the first witness i.e., her own mother by name Smt. Jayarathna W/o Nagaraj .N, No.65, 17th Cross, J.P. Nagar, 6th Phase, Bengaluru - 560 078 signed on the document, further the accused has also issued two postdated cheques in her favour i.e., cheque bearing No.972977 dated 11.04.2016 for Rs.4 lakhs and another cheque bearing No.972979 dated 05.04.2016 for Rs.5 lakhs respectively drawn on HDFC Bank, Bannerghatta Road Branch, Bengaluru - 560 029 towards discharge of the liability of loan amount, further the accused has assured her and agreed that, the loan amount of Rs.9 lakhs received by her would be repaid within three months to her. It is further contended by the complainant that, after completion of agreed period 4 C.C.No. 12555/2016 J of three months, she demanded the accused to repay the loan amount to her and she has informed that, she would pay the amount and she wants that cheques be presented for encashment. It is further contended by the complainant that, as per the instructions, she has presented the above two cheques through her banker i.e., State Bank of Mysore, Banashankari Branch, Bengaluru for encashment, but they were returned dishonoured as "Funds Insufficinet" vide bank endorsements dated:
6.4.2016 and 13.4.2016 respectively. thereafter, she got issued a legal notice dated: 16.4.2016 to the accused through RPAD calling upon her to pay the cheques amount to her within 15 days from the date of the receipt of the said legal notice and despite the service of the same, the accused has failed to comply with the demand made therein. Hence the complainant has filed this present complainant against the Accused for the offence punishable U/s.138 of Negotiable Instruments Act.
3. Before issuing process against the accused, the Complainant has filed her affidavitinlieu of her 5 C.C.No. 12555/2016 J sworn statement, in which, she has reiterated the averments of the complaint. In support of her sworn statement, P.W.1 has relied upon the documentary evidence as per Ex.C.1 to Ex.C.10 i.e, Original On Demand Promissory Note and Money Receipt dt:
25.12.2015 as per Ex.C.1, the signature of the accused on the said on demand promissory note and money receipt as per Ex.C.1(a) and the signature of the DW.2 on the said pronote to Ex.C.1(b), Original Cheques dt:11.4.2016, 5.4.2016 as per Ex.C.2 and Ex.C.3 respectively, the signatures on the said cheques identified by P.W.1 as those of the accused as per Ex.C.2(a) and Ex.C.3(a) respectively, Bank Challans as per Ex.C.4 and Ex.C.5 respectively, Bank Memos as per Ex.C.6 and Ex.C.7 respectively, Copy of the Legal Notice as per Ex.C.8, Postal Receipt as per Ex.C.9, Postal Acknowledgments as per Ex.C.10.
4. In view of the principles of law laid down and as per the directions of the Hon'ble Apex Court in the decision of the Indian Bank Association Vs., Union of India, reported in 2014 (5) SCC 590, 6 C.C.No. 12555/2016 J after recording the plea of the accused, as she intended to set out her defence, and the case was posted for cross examination of complainant and after cross examination of the complainant has closed her side.
5. Thereafter, the statement of the accused as required under Sec.313 of the Cr.P.C. has been recorded. she has denied the incriminating evidence appearing against her and has chosen to lead her rebuttal evidence, subsequently the accused herself examined as DW1 and she has relied upon the documentary evidence as per Ex.D.1 to Ex.D.5 i.e., Original Marriage Certificate of DW1 as per Ex.D.1, True copy of Aadhar Card of DW1 as per Ex.D.2, True copy of Election ID Card pf DW1 as per Ex.D.3, True copy of Election ID Card of husband of the DW1 as per Ex.D.4. On behalf of the accused One Smt. Jayarathna was examined as DW.2 and during her evidence the notarised copy of the her Aadhar card is marked as per Ex.D.5.
6. Heard the arguments by learned counsel for the complainant and accused and perused the 7 C.C.No. 12555/2016 J materials on record and written argument submitted by the learned counsel for the complainant. The learned counsel for the complainant has relied upon following the decisions ie.,1) Crl. Appeal No.2553/ 2009, decided on 19.9.2013 - B.Sudhakar Vs. P.Mrithyunjaya 2) Crl.Appeal No.2716/2013(A) decided on 1.3.2014 - M.Laxminaran Setty Vs. B.Murali 3) Crl.Appeal No.123/2021 decided on 10.2.2021 - M/s. Kalamani Textiles & Another.
Vs. P.Balasubramanian 4) C.C.No.12359 - Sri.Shivakumar M and Sri.Harisha.A CMM court pronounced on 8.1.2021 5) CC.6616/2015-Smt. Smitha and Smt.Meenakshi, dt:12.11.2020,
6) Crl.Appeal No.292/2021 (Arising out of SLP (Crl.) No.8498/18) with Crl.Apepal No.293/2021 (Arising out of SLP (Crl.) No.8564/19) dt:
9.3.2021 - Sri.Sumeti Vij Vs. M/s. Paramount Tech Fab Industries, 7) CC.No.24489/2016 between Sri.N.S.harsih and Sri.S.Manjunath dt:
11.2.2020, 8) Crl.Appeal No.803/2018 -
Sri.Kishan Rao Vs. Shankargouda dt: 2.7.2018;
9) Crl.Appeal No.1545/19 - Sri.Uttam Ram Vs. 8 C.C.No. 12555/2016 J Devinder Singh Hudan dt: 17.10.2019
10) Crl.Rev.petition No.357/2006 Sri.Bhagwan Das Damani Vs.Sri.Sachin Sarkar dt:
11.1.2017 11) 2019 4 SCC 197 - Sri.Birsingh Vs. Sri Mukesh Kumar dt: 6.2.2019 ; 12) (2016) 10 SCC 458 Sri.Sampelly Satyanarayana Rao Vs. Indian Renewable Energy Development Agency Ltd., dt: 19.9.2016; 13) (2010) 11 SCC 441 - Sri.Rangappa Vs. Sri.Mohan dt: 7.5.2010
14) (1996) Cri.L.J. 3099 in case No. Cc.
361/11/2011 - Sri. Satish Jayantilal Shah Vs. Pankaj Mushruwala 15) Crl.Appeal No.455/ 2006 (2017) S SCC 737 Sri.Parameswaran Unni Vs. G.Kannan and another., dt: 1.3.2017.
The learned counsel for the accused has relied upon the decision reported in 1) 2020 (3) KCCR 2373 (Kar HC) - vishal Vs. Prakash Kadappa Hegannawar 2) 2015(1) SCC 99 - K.Subramani Vs. K.Damodara Naidu; 3) 2014(12) SCC 625 Ramdas S/o. Khelu Naik Vs. Krishnanand S/o. Vishnu Naik 4) 2019(5) SCC 418 Basalingappa 9 C.C.No. 12555/2016 J Vs.Mudibasappa; 5)2016(2) AKR 419 Prabhakar Murthy Vs. S.G.Shankaraiah 6) 2016(1) AKR 211 A.M.Govindegowda Vs.B.v.Ravi; 7) 2019(4) AKR 604 Syed Sulaiman Shahid Vs. N.D.Subramanyam; 8)2011 Crl.L.J. 552 - Amzad Pasha Vs. H.N.Lakshmana; 9) 2016 Crl.L.J. 1267 Venkatesh Sadanand Pai Vs. Mrs.Kanchan A.Kalkodkar and anr.
7. On the basis of complaint, evidence of complainant and documents and having heard the arguments of both learned counsels for the complainant and the accused, the following points that are arise for consideration are:
1. Whether the complainant proves that the accused has issued cheques i.e., cheque bearing No.972977 dated 11.04.2016 for Rs.4 lakhs and another cheque bearing No.972979 dated 05.04.2016 for Rs.5 lakhs respectively drawn on HDFC Bank, Bannerghatta Road Branch, Bengaluru - 560 029 to discharge legally recoverable debt to the complainant and when the complainant has presented the above said cheques 10 C.C.No. 12555/2016 J for encashment through her banker but the said cheques have been dishonoured for the reasons "Funds Insufficient" vide bank endorsements dated: 6.4.2016 and 13.4.2016 respectively and the complainant issued legal notice to the accused on 16.04.2016 and inspite of it the accused has not paid the cheque amount within prescribed period there by the accused has committed an offence U/s.138 of the Negotiable instruments Act?
2. What Order?
8. The above points are answered as under:
Point No.1: In the Affirmative Point No.2:As per final order for the following:
REASONS
9. Point No.1: Before appreciation of the facts and oral and documentary evidence of the present case, it is relevant to mention that under criminal jurisprudence prosecution is required to establish guilt of the Accused beyond all reasonable doubts however, a proceedings U/s.138 of N.I.Act is quasi criminal in nature. In these proceedings proof 11 C.C.No. 12555/2016 J beyond all reasonable doubt is subject to presumptions as envisaged U/s.118, 139 and 136 of N.I.Act. An essential ingredient of Sec. 138 of N.I.Act is that, whether a person issues cheque to be encashed and the cheque so issued is towards payment of debt or liability and if it is returned as unpaid for want of funds, then the person issuing such cheque shall be deemed to have been committed an offence. The offence U/s.138 of N.I. Act presupposes three conditions for prosecution of an offence which are as under:
1. Cheque shall be presented for payment within specified time i.e., from the date of issue or before expiry of its validity.
2. The holder shall issue a notice demanding payment in writing to the drawer within one month from the date of receipt of information of the bounced cheque and
3. The drawer inspite of demand notice fails to make payment within 15 days from the date of receipt of such notice.
If the above said three conditions are satisfied 12 C.C.No. 12555/2016 J by holder in due course gets cause action to launch prosecution against the drawer of the bounced cheque and as per Sec.142(b) of the N.I. Act, the complaint has to be filed within one month from the date on which cause of action arise to file complaint.
10. It is also one of the essential ingredients of Sec. 138 of N.I.Act that, a cheque in question must have been issued towards legally recoverable debt or liability. Sec. 118 and 139 of N.I.Act envisages certain presumptions i.e., U/s.118 a presumption shall be raised regarding 'consideration' 'date' 'transfer' 'endorsement' and holder in course of Negotiable Instrument. Even Sec.139 of the Act are rebuttable presumptions shall be raised that, the cheque in question was issued regarding discharge of a legally recoverable or enforceable debt and these presumptions are mandatory presumptions that are required to be raised in cases of negotiable instrument, but the said presumptions are not conclusive and rebuttable one, this proportion of law has been laid down by the Hon'ble Apex Court of India and Hon'ble High Court of Karnataka in catena of decisions.
13C.C.No. 12555/2016 J
11. In the present case the complainant got examined as PW.1 by filing her affidavit evidence wherein she has reiterated the entire averments of the complaint and in her evidence testified that, she and the accused known to each other and friends since last several years, the accused had approached her on 25.12.2015 and requested her to lend the hand loan of Rs.9 lakhs for establishing a shop and doing the business in selling sarees, dress materials and ladies wears in J.P.Nagar, Bengaluru, initially she has not agreed to lend the above loan to the accused as the amount was heavy and she could not able to arrange for the same, but the accused went on pestering her to lend loan amount and also assured that, she would execute the On Demand Promissory Note and Money Receipt on stamp paper and also issue postdated cheques as security for the above loan amount. The complainant/PW.1 further testified that, she has agreed and mobilized the funds by borrowing amount from relatives, friends and husband and lent the loan amount of Rs.9 lakhs to the accused by way of cash on 25.12.2015 at her house, in turn the accused has received and 14 C.C.No. 12555/2016 J acknowledged the above loan amount of Rs.9 lakhs from her in cash on 25.12.2015 and in support of the loan amount, the accused had voluntarily executed the On Demand Promissory Note and Money Receipt duly signed by her on stamp paper on 25.12.2015 in the presence of two witnesses and among which, the first witness i.e., her own mother by name Smt. Jayarathna W/o Nagaraj .N, No.65, 17th Cross, J.P. Nagar, 6th Phase, Bengaluru - 560 078 signed on the document, further the accused has also issued two postdated cheques in her favour i.e., cheque bearing No.972977 dated 11.04.2016 for Rs.4 lakhs and another cheque bearing No.972979 dated 05.04.2016 for Rs.5 lakhs respectively drawn on HDFC Bank, Bannerghatta Road Branch, Bengaluru - 560 029 towards discharge of the liability of loan amount, further the accused has assured her and agreed that, the loan amount of Rs.9 lakhs received by her would be repaid within three months to her. The complainant/PW.1 further testified that, after completion of agreed period of three months, she demanded the accused to repay the loan amount to her and she has informed that, she would pay the amount and she wants that 15 C.C.No. 12555/2016 J cheques be presented for encashment. The complainant/PW.1 further testified that, as per the instructions, she has presented the above two cheques through her banker i.e., State Bank of Mysore, Banashankari Branch, Bengaluru for encashment, but they were returned dishonoured as "Funds Insufficient" vide bank endorsements dated:
6.4.2016 and 13.4.2016 respectively. thereafter, she got issued a legal notice dated: 16.4.2016 to the accused through RPAD calling upon her to pay the cheques amount to her within 15 days from the date of the receipt of the said legal notice and despite the service of the same, the accused has failed to comply with the demand made therein.
12. In support of her sworn statement, P.W.1 has relied upon the documentary evidence as per Ex.C.1 to Ex.C.10 i.e, Original On Demand Promissory Note and Money Receipt dt: 25.12.2015 as per Ex.C.1, the signature of the accused on the said on demand promissory note and money receipt as per Ex.C.1(a) and the signature of the DW.2 on the said pronote to Ex.C.1(b), Original Cheques dt:11.4.2016, 5.4.2016 as per Ex.C.2 and Ex.C.3 16 C.C.No. 12555/2016 J respectively, the signatures on the said cheques identified by P.W.1 as those of the accused as per Ex.C.2(a) and Ex.C.3(a) respectively, Bank Challans as per Ex.C.4 and Ex.C.5 respectively, Bank Memos as per Ex.C.6 and Ex.C.7 respectively, Copy of the Legal Notice as per Ex.C.8, Postal Receipt as per Ex.C.9, Postal Acknowledgments as per Ex.C.10.
13. In the present case, there is no dispute between the complainant and Accused with regard to their acquaintance. It is also not in dispute by the accused that, the cheques in question belongs to her account and signatures found at Ex..C.2(a) and C.3(a) are also those of her signatures. The Accused has also not disputed that the cheques in dispute presented for encashment and dishonoured for the reason of "Funds Insufficient" vide bank endorsements dated:6.4.2016 and 13.4.2016, therefore as a matter on record and has been proved by Ex.C.6 and C.7 issued by the concerned bank dated:6.4.2016 and 13.4.2016. Therefore the complainant has proved that, the cheques in question i.e Ex.C.2 and C.3 were presented within 17 C.C.No. 12555/2016 J their validity period and dishonoured as per bank endorsement issued by the banker of the Accused and the cheques in question belonging to the Accused account and signatures of the Accused is at Ex.C.2(a) and C.3(a).
14. In relation to the service of notice the complainant has produced the documents i.e copy of the legal notice, postal receipt and postal acknowledgement, which are at Ex. C.8 to C.10 respectively. On perusal of the Ex.C.8 to C.10 it appears that, the complainant has issued legal notice to the accused on 16.4.2016 i.e, within 30 days from the date of receipt of bank memos i.e., dishonour of the cheques and it was sent through RPAD and the said notice was received by affixing the signature at postal acknowledgement as per Ex.C.10. The Accused in her defence has denied the service of legal notice on her and also disputed the address shown by the complainant in the legal notice and postal acknowledgement. The learned counsel for the accused during the course of cross examination has suggested that, the accused is not residing in the address shown in Ex.C.8 and she 18 C.C.No. 12555/2016 J has issued the legal notice by mentioning wrong address of the accused with an intention not to serve the legal notice on the accused but the complainant had denied the said suggestions and also stated that, though she has not produced the documents to show the address of the accused as shown by her in the legal notice but the legal notice caused by her was duly served upon the accused.
The complainant has also denied the suggestions made to her that, she had created Ex.C.10 postal acknowledgement by forging the signature on Ex.C.10 and she ignored the suggestion made to her that, there is a difference in signatures on Ex.C.2 cheque and and signature on Ex.C.10 postal acknowledgement. The accused has suggested the address of the accused is No.172, 30 th 'A' Main, J.P.Nagar 6th Phase, Bangalore 78, but the complainant stated that, the said address is the address of the accused after her marriage and she does not know who were residing in the said address, but denied the suggestion that, the above stated address is the permanent address of the accused and accused is residing in the said address. Hence, though the accused has cross examined the 19 C.C.No. 12555/2016 J complainant in length with regard to service of legal notice but nothing has been elicited to show that, complainant has admitted that, the address shown in the legal notice and postal acknowledgement is not the correct address of the accused and the notice caused by the complainant was to the wrong address of the accused with an intention not to serve the notice on the accused.
15. The accused in order to show her address has produced her certificate of registration of marriage, notarized copy of the Aadhar card and voter I.D. card which are at Ex.D.1 to D.3 respectively. On careful perusal of Ex.D.1 to D.3, wherein the address of the accused shown as No.172, 30 'A" Main, J.P.Nagar 6 th Phase, Bengaluru, but perusal of Ex.D.1 ie marriage and registration certificate of the accused the date of marriage and registration is shown as 9th June 2016, hence it goes to show that, the accused was residing in the address shown in the Ex.D.1 at the time of her marriage ie as on 9 th June 2016 but whereas the legal notice issued by the complainant dt: 16.4.2016 ie much prior to the date of marriage of the accused, 20 C.C.No. 12555/2016 J in such circumstances it cannot be held that, as on the date of issuance of the legal notice the accused was not residing in the address shown in the legal notice, in such circumstances though the accused has produced Ex.D.1 it will not help for her to prove that as on the date of issuance of the legal notice she was residing in the said address. It is also relevant here to mention that, though the accused has produced Ex.D.2 and D.3 and in the documents the address of the accused shown as No.172, 30 'A' Main, J.P.Nagar 6th Phase, Bengaluru but the perusal of the address shown by the complainant in the legal notice ie., no.65, 17 th cross, J.P.Nagar 6th Phase, Bengaluru, therefore except the house number and cross the remaining address shown by the complainant and the address mentioned in Ex.D.2 and D.3 are one and the same. It is true that, the complainant has shown house number as 65 and and cross number as 17th but the legal notice sent by her through registered post was served on the accused as per the Ex.C.10. It is the specific denial of the accused that, complainant had got created signature on Ex.C.10 ie postal acknowledgement and produced before the court, 21 C.C.No. 12555/2016 J but in order to prove the said defence the accused has not produced any documentary proof or has not made any efforts to examine the concerned postal authorities, therefore mere making suggestion to the complainant that, she had created signature on Ex.C.10 it cannot be held that, the complainant forged the signature on Ex.C.10 and produced before the court, to that extent the burden of proving is on the accused and the accused has failed to prove that, the complainant forged the signature on Ex.C.10 and the legal notice caused by her was not served on the accused. If really the accused has not received the legal notice as per Ex.C.10 and though her house number and cross shown as wrongly by the complainant while sending the legal notice to her, definitely the accused would have examined the concerned postal authorities to prove the said fact. Even it is not the defence of the accused that, the complainant got colluded with the postal authorities and created signature on Ex.C.10 and produced before the court, in such circumstances in the absence of concrete evidence with regard to alleged forgery of signature on Ex.C.10 it cannot be held that the complainant has forged the signature on 22 C.C.No. 12555/2016 J Ex.C.10 and got created the same to show that, the legal notice caused by her was served on the accused, therefore the accused has miserably failed to prove that, the legal notice caused by the complainant was not served on her. It is true that, the accused has produced Ex.D.1 to D.4 ie Marriage certificate, Aadhar card, Voter IDs, to show that, she is residing at house no. 30 'A" Main, J.P.Nagar 6th Phase, Bengaluru but the legal notice caused by the complainant through RPAD was duly served on the accused as evidenced by Ex.C.9 and C.10.
16. In addition to that, it is also relevant here to refer the decision reported in 2007 AIR SCW 3578 in the case of C.C.Alavi Haji Vs. Palapetty Muhammed and another., wherein the Hon'ble Apex court held that " the drawer of the cheque is permitted to deposit the cheque amount within 15 days from the date of his appearance before the court in pursuance of the service of summons on him and in such situation, his defence of non service of the legal notice cannot be available to him'. Hence, in view of the said 23 C.C.No. 12555/2016 J principles of law, even for sake of discussion, though there is no cogent and reliable documentary proof to substantiate the claim of the complainant with regard to address of the Accused to show there is due service of the legal notice on the Accused, in view of settled position of law by virtue of the above said decision of Hon'ble Apex Court of India, the Accused is not entitled to the technical defence of the alleged non service of the legal notice. Therefore, the argument canvassed by the learned counsel for the accused that, the notice issued by the complainant was not served on the accused and the complainant has not complied the mandatory requirements of Sec.138(b) of N.I.Act and complaint is not maintainable cannot be acceptable and are not sustainable in law and with due respect to the principles of law laid down by the Hon'ble High Court of Karnataka in the decision relied upon by the learned counsel for the accused ie 2011 CRI.L.J. 552 are not applicable to the present facts of the case since the facts of this case and facts and circumstances in the decision are not one and the same.
24C.C.No. 12555/2016 J
17. The accused has also taken specific defence that, the complainant has not lent the loan amount in question and in turn she has issued the cheque in question towards discharge of the loan transaction in question and also disputed the financial capacity of the complainant to lend the loan amount. The complainant in order to prove the same has produced On Demand promissory note and money receipt dt: 15.12.2015 as per Ex.C.1 executed by the accused in her favour, Original cheques as per Ex.C.2 and C.3. According to the complainant the accused approached her on 25.12.2015 and requested to lend hand loan of Rs.9 Lakhs for establishing a shop and doing business in selling sarees and dress materials and ladies wears etc., and initially she did not agreed to lend the amount as it was heavy and not able to arrange funds but due to pressure of the accused she had agreed and mobilized the funds and lend the said amount by way of cash to the accused in her house and accused has voluntarily executed On demand promissory note and money receipt duly signed by her on stamp paper on 25.12.2015 in the presence 25 C.C.No. 12555/2016 J of witnesses amongst which the first witness is one other of the accused by name Smt. Jayarathna W/o.Nagaraj and accused has also issued two post dated cheques in her favour ie for sum of Rs.4 Lakhs and Rs.5 Lakhs in total Rs.9 Lakhs and agreed to repay the said amount within a period of three months.
18. It is relevant here to mention that, the perusal of recitals of Ex.C.1 it appears that, the accused has received an amount of Rs.9 Lakhs for development of her business from the complainant along with her mother in the presence of witnesses towards security and guarantee and towards repayment of the said loan amount she had given two cheques pertains to her saving account maintained in HDFC Bank, Bannerghatta Road Branch by mentioning the dates and also agreed and undertakes to repay the said loan amount within three months to the complainant and if she failed to repay the said loan amount within three months liberty is given to the complainant to present his cheques and encash the loan amount. The complainant has also identified the signature of the 26 C.C.No. 12555/2016 J accused as per Ex.C.1(a). On the other hand, the accused has denied the execution of Ex.C.1 infavour of the complainant but the accused contended that, she had given signed blank stamp paper to the complainant. It is relevant here to mention that, though the accused has denied execution of Ex.C.1 but she has admitted her signature on Ex.C.1 and also admitted that, her mother's signature on Ex.C.1 as a witness and a specific suggestion was made to her that, only after reading and understanding the recitals in Ex.C.1 she and her mother were affixed their signatures to the Ex.C.1 but the accused has not denied the said suggestion instead of denying she has stated that, she and her mother were affixed their signatures on Ex.C.1 at that time it was a blank stamp paper. It is also relevant here to mention that, the mother of the accused ie one of the witness to the Ex.C.1 was examined as DW.2 by the accused herself and the DW.2 in her cross examination has also admitted her signature on Ex.C.1 is at Ex.C.1(b) and the signature of his daughter ie the accused is at Ex.C.1(a) but she also contends that, at the time of affixing their signature the Ex.C.1 was blank stamp 27 C.C.No. 12555/2016 J paper. Hence, in view of the unequivocal admissions of the accused and her mother it can be held that, the complainant has proved that, Ex.C.1 ie the On demand promissory note and money receipt and bears the signatures of accused and her mother but they denied the contents of Ex.C.1 by contending that, the complainant was conducting the chit transaction in the month of February 2015 and it was closed in the month of May 2016, and her mother was also one of the chit subscriber and she was successful bidder in the month of March 2016 and she was about to receive Rs.42,000/ out of Rs.50,000/ at that time the complainant had demanded a signed blank stamp paper of Rs.500/ and four blank signed cheques from her mother as security to pay the chit amount, as her mother was not having the cheque book, therefore her mother had taken her four blank signed cheques and given the same to the complainant and also herself and her mother had signed in a blank stamp paper and given the same to the complainant towards security of the chit amount. But the accused or his mother ie DW.2 except her oral evidence have not produced any single piece of paper or documentary evidence to 28 C.C.No. 12555/2016 J show that, the complainant was doing chit transaction in the year 2015 and it was closed in the year 2016 and mother of the accused ie DW.2 was also one of the subscriber in the said chit transaction and she was successful bidder in the month of March 2016 and at the time of receiving the chit amount the accused and her mother were given signed blank paper and the same has been converted into an Ex.C.1 as alleged by the accused, therefore in the absence of documentary proof by the accused and in view of unequivocal admission by the accused and her mother with regard to their signatures on Ex.C.1 it cannot be held that, the complainant got created the recitals of Ex.C.1 and the accused and her mother were handed over blank signed stamp paper to the complainant.
19. It is also relevant here to mention that, during the course of cross examination of the complainant the learned counsel for the accused has elicited certain facts that, the complainant admitted that, she does not know on which date the stamp paper ie Ex.C.1 was purchased and Ex.C.1 bears the date as 22nd March 2016 but the complainant 29 C.C.No. 12555/2016 J stated that she does not know the said date on Ex.C.1. The learned counsel for the accused during the course of argument has much argued on the point of the date, month and year mentioned on Ex.C.1 and the date month and year of execution of the Ex.C.1 as claimed by the complainant ie according to the complainant the accused has executed Ex.C.1 on 25.12.2015 in the presence of witnesses but whereas the stamp paper ie., Ex.C.1 bears the date month and year as 22.3.2016, therefore when the stamp paper purchased on 26 March 2016 the same cannot be executed by the accused on 25.12.2015 ie much prior to the date mentioned on the Ex.C.1 stamp paper, therefore the complainant has created the Ex.C.1. It is true that, the date mentioned on Ex.C.1 is MAR 22, 2016 and it is the specific claim of the complainant that, the accused has executed the Ex.C.1 on 25.12.2015 but the complainant has specifically contended that, the accused herself and voluntarily executed the Ex.C.1 and duly signed by her on stamp paper and her mother was also signed as a witness to the said document, the accused and her mother were also admitted that, the Ex.C.1 bears their signatures but 30 C.C.No. 12555/2016 J it is their contention that, themselves have voluntarily given Ex.C.1 duly signed by them at that time it was a blank signed stamp paper , in such circumstances the burden of proof is on the accused to prove that, the Ex.C.1 stamp paper was given either on 22 March 2016 or on subsequent date ie., mentioned on it, but the accused has not produced any documentary proof or satisfactory evidence to show that, she and her mother have handed over the Ex.C.1 blank signed stamp paper on 22 nd March 2016 and it was created by the complainant by mentioning the date of execution as on 25.12.2015 except the oral say and denial during the cross examination of the complainant with regard to execution of Ex.C.1 nothing has been produced by the accused to show that, the recitals of Ex.C.1 are created on the Ex.C.1 stamp paper which was handed over to the complainant as blank signed stamp paper, therefore for the above said reasons the facts which are elicited by the learned counsel for the accused in respect of date month and year mentioned on Ex.C.1 and defence of the accused that, complainant got created the Ex.C.1 cannot be acceptable one. In addition to that, if really the 31 C.C.No. 12555/2016 J complainant got created the Ex.C.1 prior to the date mentioned on Ex.C.1, definitely the date of purchase of the stamp paper should have been mentioned on the Ex.C.1 stamp paper as 22nd March 2016 but it is nowhere mentioned on the stamp paper that, it was purchased on 22nd March 2016, therefore mere appearing the date on 22nd March 2016 on Ex.C.1 it cannot be held that, the complainant got created the Ex.C.1 as contended by the accused. It is defence of the accused that, her mother and herself are handed over a blank signed stamp paper to the complainant in the year 2016 towards security of the chit amount and subsequently it has been got created as Ex.C.1 ie On demand promissory note and money receipt by the complainant, if that is the real fact, the accused after repayment of the chit amount definitely she or her mother would have made efforts to get return of blank signed stamp paper from the complainant allegedly given to her at the time of chit transaction but no such efforts have been made either by the accused or her mother and even the accused would have disclosed this fact by issuing reply to the notice issued by the complainant in this case but even after receipt of the 32 C.C.No. 12555/2016 J notice by the accused she has not made any efforts to issue reply by disclosing the fact that, she and her mother had given blank signed paper to the complainant, therefore the conduct of the accused and her mother in denying the contents of Ex.c.1 though they have admitted their signatures on Ex.C.1 may leads to draw an adverse inference against them that only in order to avoid admitting the execution of Ex.C.1 infavour of the complainant they are denying the contents of Ex.C.1 though they have admitted their signatures on Ex.C.1, in such circumstances the defence of the accused that, herself and her mother had given signed blank stamp paper to the complainant at the time of receipt of chit subscription amount and same has been got created by the complainant cannot be acceptable one and accused has miserably failed to prove that Ex.C.1 is either created or concocted, on the other hand the complainant ha successfully proved that, the accused has executed Ex.C.1 by receiving the loan amount of Rs.9 Lakhs from her and the Ex C.1 duly signed by her and her mother as a witness to the Ex.C.1.
33C.C.No. 12555/2016 J
20. The learned counsel for the accused has also elicited certain facts in the cross examination of th complainant with regard to financial capacity ie the complainant has admitted that, she has not stated neither in the complaint nor in the legal notice nor her affidavit that, the names of her relatives or her friends from whom she claimed to have mobilized the funds so as to lend the same to the accused and as per agreement as per Ex.C.1 there is no recital with regard to the undertaking by the accused for payment of interest and there is recital in Ex.C.1 the accused is said to have agreed to repay the loan amount within a period of three months from the date of agreement and she has not stated in her complaint and affidavit evidence about the how much amount received from her relatives and how much amount received from her friends and has not maintained the accounts in respect of the receitp of the amount from others, but the above said admissions are not sufficient to hold that, complainant is not having financial capacity to lend the loan amount to the accused and even it is not mandatory on the part of complainant to mention 34 C.C.No. 12555/2016 J how she has mobilized the funds to lend the loan amount in question to the accused either in the legal notice or in the complaint or in her affidavit evidence and mere non mentioning of the same in the complaint, notice, evidence is not a ground to discard entire evidence of the complainant. It is the specific defence of the accused that, the complainant was conducting the chit transaction in the year 2015 and her mother was also subscriber to the chit transaction and she had received an amount of Rs.50,000/ towards chit amount, according to the accused the complainant was conducting the chit transaction in such circumstances the very defense of the accused amounts to impliedly admitting the financial capacity of the complainant though she has not produced the documentary proof to show that, complainant was conducting the chit transaction. Therefore on entire perusal of the cross examination of the complainant nothing has been elicited to discard or discredit the evidence of the complainant and to accept the defence of the accused that, the complainant is not having financial capacity to lend the loan amount to the accused.
35C.C.No. 12555/2016 J
21. In addition to the above the perusal of the oral and documentary evidence produced by the complainant and admitted facts by the accused makes it clear that the complainant has proved that the cheques in question were issued by the accused i.e., Ex.C.,2 and C.3 in her favour and signatures found at Ex.C.2(a) and C.3(a) are those of the accused and the complainant presented the said cheques through her banker and same were returned dishonoured for the reason of funds insufficient as per Ex.C.6 and C.7 and thereafter within 30 days from the date of receipt of Ex.C.6 and C.7 the complainant got issued legal notice as per Ex.C.8 to the accused and the said notice was sent through RPAD as per Ex.C.9 and it was received by the accused as per Ex.C.10. But the accused has failed to prove that the cheques in question were given to the complainant towards the security of the chit amount at the time of receiving the said amount by her mother from the complainant and the accused has failed to prove that how the cheques in question entered in to the hands of complainant, in such circumstances, it can be held that, the 36 C.C.No. 12555/2016 J complainant has discharged her initial burden by complying the mandatory requirements as required U/s.138 of N.I. Act and initial presumptions are available in favour of the complainant U/s.118(a) and 139 of the N.I. Act and when the presumptions U/s.118 and 139 of N.I.Act are available to the complainant, even a presumption can be drawn to the extent of existence of legally recoverable debt or liability against the Accused even in the absence of documents produced by the complainant with regard to source of income. In this regard it is relevant here to refer the decisions reported in 2001 AIR Karnataka HCR 2154 between 'M/s.Devi Tyres V/s.Navab Jan' and in 2011 ACD 1521 (KAR) between 'Smt. Usha Suresh V/s. Shashidharn', in 2010 SC 1898 between 'Rangappa Vs. Mohan' and 2011 ACD 1412 (KAR) between 'N.Hasainar Vs. M.Hasainar, S/o. Ibrahim'. The Hon'ble High Court of Karnataka in the above decision i.e., 2001 AIR Karnataka HCR 2154 at para No.6 was pleased to hold that issuance of cheque itself was an adequate proof of existence of debt or liability. In another decision of Hon'ble Apex Court of India i.e. Hon'ble 37 C.C.No. 12555/2016 J Three Judges Bench Decision reported in (2010) 11 SCC 441 in the case of Rangappa Vs. Sri. Mohan ., wherein the Hon'ble Apex Court held that "
A. Negotiable Instruments Act, 1881 - S.139 -
Presumption under- scope of - Held, presumption mandated by S. 139 includes a presumption that there exists a legally enforceable debt or liability-However such
presumption is rebuttable in nature - Criminal Trial - Proof - Presumptions - Generally. Further held that "Signature on the cheque was his, statutory presumption under S.139 comes into play and the same was not rebutted even with regard to the materials submitted by complainant Appellant not able to prove "lost cheque" theory - Apart from not raising a probable defence appellant was also not able to contest the existence of a legally enforceable debt or liability-hence, his conviction by High Court, held, proper. In another decision of Hon'ble Apex Court of India, reported in CRIMINAL APPEAL 38 C.C.No. 12555/2016 J NO. 508 OF 2018 DT 15032018 between ROHITBHAI JIVANLAL PATEL Vs. STATE OF GUJARAT AND ANR held that "Negotiable Instruments Act facts like source of funds are not relevant if the Accused has not been able to rebut the presumption. It is further held that " When such a presumption is drawn, the facts relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the Accused has been able to rebut the presumption or not". In another decision of Hon'ble Apex court of India decided in Crl.Appeal No.1545 of 2019 dt.17/10/2019 by the Hon'ble Apex Court of India in the case of Uttam Ram Vs. Devinder Singh Hudan and Anr. Wherein the Hon'ble Apex Court held that, "
Dishonor of cheque - Statutory presumption under - burden to prove - the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other liability - it is immaterial that the cheque may 39 C.C.No. 12555/2016 J have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer - even a blank cheque leaf, voluntarily signed and handed over by the accused which is towards some payment, would attract presumption U/s. 139 of NI Act - the accused is held guilty of dishonour of cheque for an offence U/s.138 of NI Act. It is also held that, " the accused has failed to lead any evidence to rebut the statutory presumption, a finding returned by both the Trial Court and High Court. Both courts not only erred in law but also committed perversity when the due amount is said to be disputed only on the account of discrepancy in the cartons, packing materials or the rate to determine the total liability as if the appellant was proving his debt before the civil court. Therefore it is presumed that, the cheque in question were drawn for consideration and the holder of the cheques received the same in existing debt". It is also held that, "the Trial 40 C.C.No. 12555/2016 J court and the High Court proceeded as if, the appellant is to prove a debt before civil Court wherein, the plaintiff is required to prove his claim on the basis of evidence to be laid in support of his claim for the recovery of the amount due. A dishonour of cheque carries statutory presumption of consideration. The holder of cheque in due course is required to prove that, the cheque was issued by the Accused and that when the same presented , it was not honoured Since there is a statutory presumption of consideration, the burden is on the Accused to rebut the presumption that, the cheque was issued not for any debt or other liability". It is also relevant here to refer the decision of Hon'ble High Court of Karnataka reported in ILR 2019 KAR 493 in the case of Sri.Yogesh Poojary Vs. Sri.K.Shankara Bhat, wherein the Hon'ble High Court held that, the presumption mandated by Sec.139 of N.I Act includes the presumption that, there existed a legally 41 C.C.No. 12555/2016 J enforceable debt or liability, however such presumption is rebuttable in nature". In another decision of Hon'ble High Court of Karnataka in the case of Shri.V.R.Shresti Vs. Shri. Bhaskara.P. in Crl. Appeal No. 2109/2017 dated: 15.10.2019 wherein the Hon'ble High Court of Karnataka held that "the Accused has not given any reply to the notice and also in the crossexamination, he categorically admits that, the cheque has bounced on account of no sufficient fund in the bank account of the Accused. Mere non producing of the document before the court with regard to the source of income to advance a loan is not a ground to dismiss the complaint. The Accused ought to have rebutted the contention of the complainant by producing cogent evidence before the court and mere denial is not enough". In another decision of Hon'ble Apex Court of India reported in ICL 2021(2) SC 529 in the case of M/s Kalamani Tex Vs. P. Balasubramanian, dt: 10.02.2021, wherein the Hon'ble Apex Court held that, "once the accused 42 C.C.No. 12555/2016 J had admitted his signatures on the cheque and deed, the trial court ought to have presumed that, the cheque was issued as consideration for legally enforceable debt." In another decision of Hon'ble Apex Court of Indian in Crl. Appeal No.132/2020 in the case of D. K. Chandel Vs. M/s Wockhardt (L) wherein it is held that, "Production of account books / cash book may be relevant in the civil court, may not be so in the criminal case filed under Sec.138 of N.I. Act while restoring the trial court judgments, the High Court observed that "the reason given by the lower Appellate Court that, he did not bring the cash book or order book etc., could well be understood, if civil suit is tried." But may not be so in the criminal case filed under Sec.138 of N.I. Act. This is because of presumption raised in favour of holder of cheque. Therefore on careful reading of the principles of law laid down by the Hon'ble Apex Court of India and High Court of Karnataka in the above referred decisions makes it very clear that, once the holder in due course i.e. the 43 C.C.No. 12555/2016 J complainant proved that, the cheque in question belongs to the drawer and signature appearing on the cheque is that of the drawer i.e., Accused and complied the mandatory requirements as required U/s.138 of N.I.Act, presumptions U/s.118a and 139 of N.I.Act indeed does extend to the existence of legally recoverable debt unless the Accused rebutted the presumption available to the complainant as held by the Hon'ble Apex Court and High Court of Karnataka in the above decisions. In the present case also the complainant has complied the mandatory requirements and has proved that, the accused has issued the cheques in question in her favour and the the accused has admitted the cheques belongs her account and admitted her signatures on the cheques are those of her signatures and complainant has proved that the legal notice issued by her was served on the Accused in such circumstances, presumptions have to be drawn even towards existence of liability in question as per Sec.118a and 139 of N.I.Act., even in the absence of the documentary proof with regard to source of income and non examination of the witnesses ie friends or relatives of the complainant.
44C.C.No. 12555/2016 J Consequently it is for the Accused to rebut the said presumptions available in favour of the complainant to show that, the cheques in question were not issued either to the complainant or towards discharge of any liability in question by producing cogent and convincible evidence but not mere suggestions or even by plausible explanation. Therefore, for the above said reasons the arguments canvassed by the learned counsel for the accused that, the complainant has not produced the documents to show that, she has lent an amount of Rs.9,00,000/ to the accused and the complainant has not produced the documents to prove that, she was having financial capacity to lend the money and has lent the loan amount to the accused cannot be acceptable one. The defence taken by the Accused appears that, the complainant has to prove her claim by producing her evidence as if it is required for proving of her debt before the Civil Court, but same cannot be permissible in a proceedings initiated U/s.138 of N.I. Act, as held by the Hon'ble Apex court of India in the above referred decision, therefore in view of the principles of law laid down in the above referred decisions it is presumed that, 45 C.C.No. 12555/2016 J cheques in question were drawn for consideration as the Accused has admitted the cheques in question belongs to her account and signatures found on the cheques in question are those of her signatures. Therefore for the above said reasons and findings given by this court, the arguments canvassed by the learned counsel for the accused cannot be acceptable one and are not sustainable in law and with due respect to the principles of law laid down by the Hon'ble Apex Court of India and High Court of Karnataka relied upon by the learned counsel for the accused are not applicable to the defence of the accused in this case as the facts of the circumstances of this case and facts and circumstances of the cases in the decisions relied upon by the defence counsel are not one and the same and in the present case the accused has admitted her signatures on the cheques and cheques belongs to her account and has not produced any reputable evidence to rebut the presumptions available in favour of the complainant.
22. It is suggested in the cross examination of the complainant by the accused that, there is 46 C.C.No. 12555/2016 J difference in the ink with regard to the signature when compared to that of other contents of the subject cheque for that, the complainant stated that, there might be such difference but she have not observed it. The learned counsel for accused during the course of argument more specifically argued that, if the subject cheques are verified it appears that, there is difference in ink with regard to the signature when compared to that of the other contents of the cheques in question and complainant has also admitted the difference in the ink in signature and also other contents of the cheques in question, therefore the complainant by misusing blank cheques which have been given by the accused by filling the contents of the cheque has filed this complaint and the admissions of the complainant corroborates the defence of the accused that, the complainant had collected blank signed cheques from the mother of the accused towards security of the chit amount. It is true that, the complainant has not denied the suggestion made to her that, there is difference in the ink in respect of signature when compared with the other contents of the subject cheques but she admits that, there 47 C.C.No. 12555/2016 J might be such difference and she have not observed it but she nowhere admitted that, the contents of the cheques in question have been written by her or the accused has issued signed blank cheques to her towards security of the chit amount as alleged by her, therefore mere admitting the fact that, there might be a difference in ink in respect of signature and other contents of the subject cheques is not a ground to hold that, the mother of the accused had given blank signed cheques and same have been filled in by the complainant and filed this complaint. It is admitted by the accused that, the cheques in question belongs to her account and signatures found on the cheques in question ie Ex.C.2 (a) and C.3(a) are those of her signatures, in such circumstances it can be held that, once signature on the negotiable instrument act is admitted, in that circumstances sec. 20 of N.I. Act comes into play i.e. as per Sec. 20 of N.I.Act if the blank or incomplete Negotiable Instrument is given to the holder in due course, it is to be presumed that, she had given authority to the holder in due course to fill up the remaining portion. In this regard, it is relevant here to refer the decision of Hon'ble High Court of 48 C.C.No. 12555/2016 J Karnataka reported in ILR 2006 KAR 2054 in the case of H.S.Srinivasa Vs. Girijamma and another wherein the Hon'ble High Court held that "
a reading of sec.20 of the act which is extracted above reveals that, the words used are ' either wholly blank or having written therein an incomplete negotiable instrument' . The instrument may be wholly blank or incomplete in a particular in either case, the holder has authority to make or complete the instrument as a negotiable one. The authority implied by a signature to a blank instrument is so vide that, the party so signing is bound to be a holder in due course. Promissory notes are often executed in the name of the payer and left unfilled to be afterwards filled by the actual holder, the object being to enable the owner to pass it off to another without incurring the responsibility as an endorser. Thus, it is seen that, person in possession of an incomplete instrument in maternal particulars has the authority prima 49 C.C.No. 12555/2016 J facie to fill it and thus the executants becomes liable to pay the amount due'. In another decision of Hon'ble High Court of Madras reported in 2005 (1) DCR 85 in the case of P.A.Thamatharan Vs. Dalmia cements (B) Ltd., wherein it is held that "
Negotiable Instrument Act 1991 - Sec. 138 - dishonour of cheque - plea -body of cheque was not written by Accused - held it is not mandatory and no law prescribes that, the body of cheque should also be written by the signatory to the cheque, a cheque could be filled up anybody and if it is signed by the account holder of the cheque'. In another decision reported in 1996 Cri. L.J.3099( Guj) :1997 II Crimes : 1997 (I) CCR 603 wherein the Hon'ble High Court held that "no law provides that, in any case of any negotiable instrument entire body has to be written by maker or drawer only". It is further held that, " when a cheque is admittedly issued blank are incomplete and there is no dispute regarding the signature, it 50 C.C.No. 12555/2016 J can be presumed that, there is an implied consent for filling up the cheque as when required by holder and get it encashed. Complaint of dishonour of such cheque cannot be held to be beyond the scope of penal provisions of Sec.138". In another decision of Hon'ble Apex court to India reported in (2002) 7 SCC in the case of P.K. Manmadhan Karthra Vs.Sanjeeva Raj., wherein it is held that " As long as signature on the cheque is admitted, whether the ink with which the other particulars are filled up is different or that the hand writing is not that of drawer does not matter. Until rebutted, the presumption that, cheque was issued for consideration exists". In another decision of Hon'ble High Court of Karnataka at Bengaluru in a case of Crl. Appeal No. 1664/2003 C/w. Crl.Appeal No.1663/2003 dated: 18.6.2008 in the case of R.Mallikarjuna Vs. H.R.Sadashivaiah wherein the Hon'ble High Court at para No.19 held that " But, the question is, 51 C.C.No. 12555/2016 J whether that renders instrument unenforceable. In this regard, it must be observed that, this court similar circumstances in the case of S.R. Muralidar Vs. Ashok G.Y. reported in 3001 (4) KAR. LJ K. 122 referring to the provisions of Sections 20, 138, 139, and 140 of the Act and after interpreting alteration and filling up of the cheque observed thus " The trial court has made much about the difference in ink. Admittedly, Accused cheque is issued bearing signature of the Accused. It is the contention of the defence that, blank cheques issued for the business transactions have been illegally converted as a subject matter to this case fastening false liability........ It is not objectionable or illegal in law to receive a inchoate negotiable instrument duly signed by the maker despite the material particulars are kept blank if done with an understanding and giving full authority to the payee to fill up the material contents as agreed upon. Such a 52 C.C.No. 12555/2016 J course of action in law cannot vitiate the transaction nor can invalidate the negotiable instrument issued and such transaction fully begins the maker of the negotiable instrument to the extent it purports to declare........ The fact that, a document executed is inchoate with regard to some of the material particulars would not render such contract invalid nor make the instrument illegal or inadmissible. Voluntarily, if a person were to deliver an inchoate instrument authorizing the receiver to fill up the material contents as agreed upon, the cheque does not get tainted as in admissible nor it amounts to tampering with the material particulars...... In the present case there is no categorical defence version, it is only by conjunctures and surmises, a case is made out from the difference in ink between the signature of the cheque and the other handwritten contents. Therefore in view of the principles of law of Hon'ble Apex court of India and also Hon'ble High Court of Karnataka and Madras referred above, in 53 C.C.No. 12555/2016 J the present case the Accused has admitted the signatures on Negotiable Instruments i.e. cheques and she also admitted issuance of the cheques, it is primafacie proof of authorizing the holder in due course i.e. the complainant to fill up the remaining contents of the Negotiable Instrument, therefore it cannot lie in the mouth of the Accused that, the complainant had misused or fabricated the cheques in question given by her and the defence of the Accused cannot be acceptable one as the instruments i.e., cheques in question cannot be rendered unenforceable merely because the contents have been filled by different ink, as it would not rendered such instrument illegal or inadmissible, the complainant certainly can base action on it.
23. In addition to that, even for sake of discussion if it is assumed that, Accused has given cheques in question to the complainant without mentioning the name of the payee, in such circumstances also it attracts the penal liability as contemplated U/s.138 of N.I. Act. In this regard, it is relevant here to refer decision of Hon'ble Apex Court 54 C.C.No. 12555/2016 J of India reported in AIR 2019 SC 2446 in the case of Birsingh Vs. Mukesh Kumar., wherein the Hon'ble Apex Court held that, "presumption U/s.139 is presumption of law, distinguished from presumption of facts and also held that, presumptions are rules of evidence and do not conflict with presumption of innocence which requires prosecution to prove case against the Accused and also held that obligation on the prosecution may discharged with the help of presumptions of law and presumption of fact unless the accused adduces evidence showing reasonable plausibility of non existence of presumed fact." In the present case though the Accused has denied the contents of the cheques in question except her signatures but she did not proved her defence or produced any documents or satisfactory evidence to rebut the presumptions as available U/s.139 of the N.I.Act, under such circumstances in view of the above principles of law, it can be presumed even on fact also that the complainant has proved her case by discharging her 55 C.C.No. 12555/2016 J burden by complying the mandatory provisions. In the said decision the Hon'ble Apex court has also held that, "presumption as to legally enforceable debt is rebuttable, the signed blank cheque if voluntarily presented to payee towards payment payee may fill up amount and other particulars and it in itself would not invalidate cheque and onus would still be on the accused to prove that, cheque was not issued or discharge of debt or liability by adducing evidence." In another decision of Hon'ble Apex court of India decided in Crl.Appeal No.1545 of 2019 dt.17/10/2019 by the Hon'ble Apex Court of India in the case of Uttam Ram Vs. Devinder Singh Hudan and Anr. Wherein the Hon'ble Apex Court held that, "Dishonor of cheque - Statutory presumption under - burden to prove - the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other liability - it is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the 56 C.C.No. 12555/2016 J drawer - even a blank cheque leaf, voluntarily signed and handed over by the accused which is towards some payment, would attract presumption U/s. 139 of NI Act - the accused is held guilty of dishonour of cheque for an offence U/s.s.138 of NI Act. In view of the principles of law laid down as above, even if it is admitted by the complainant that, she had written her name and date on the cheques in question in such circumstances also in view of the principles of law laid down in the above decision that itself would not invalidates the cheques in question and it can be presumed that, the said cheques have been issued towards discharge of legally recoverable debt, therefore the defence of the accused that, except the signatures on the subject cheques and has not filled up the rest of the contents in it cannot be acceptable one and for the above said reasons the arguments canvassed by the learned counsel for the accused is not sustainable in law and are not accepted.
24. In order to rebut the presumptions available to the complainant and to substantiate the 57 C.C.No. 12555/2016 J defence of the accused, the accused herself examined as DW.1 and in her evidence stated that, she know the complainant through her mother as her mother was one of the subscriber in the chit group conducted by the complainant and the complainant was conducting the several groups of chits, in one of the group her mother was the subscriber in which the chit amount involved was Rs.50,000/ and monthly subscription was Rs.2,500/ to be paid in 20 months and her mother was working as a tailor and her income was about Rs.10,000/ p.m. and as on the date of borrowing money she had no earnings. The accused further deposed that, the complainant started chit in the month of February 2015 and it was closed in the month of May 2016 and her mother was successful bidder in the month of March 2016 and she was about to receive Rs.42,000/ out of Rs.50,000/ at that time the complainant demanded a signed blank stamp paper of Rs.500/ and four blank signed cheques from her mother as security to pay the bid amount but her mother was not having the cheque book and she had taken her four blank sieged cheque and given the same to the complainant as 58 C.C.No. 12555/2016 J security and complainant has also demanded her to give signed blank stamp paper, accordingly herself and her mother had signed in a blank stamp paper and given to the complainant, thereafter the complainant after deducting the balance subscription amount had paid an amount of Rs.37,000/ to her. The accused /DW.1 further deposed that, her mother had completely paid the chit subscription amount to the complainant and she was not aware and educated to take back the signed blank stamp paper and also four signed blank cheques of her and in the month of April 2016 the complainant once again demanded monthly subscription amount but her mother refused to pay the same and the differences between the complainant and her mother aroses, though her mother had paid the entire amount to the complainant but the complainant misused her four blank signed cheques and signed blank stamp paper by filling up the same and has presented two subject cheques and has filed this false case against her.
25. The accused in support of her oral 59 C.C.No. 12555/2016 J evidence has also examined her mother as DW.2 and the DW.2 in her evidence stated that, accused is her daughter and she know the complainant as she was one of the subscriber to the chit group ran by the complainant and her daughter also came to know about the complainant through her and the complainant apart from conducting chit also was an astrologer. The DW.2 further stated that, she is a tailor by profession and earning about Rs.10,000/ to Rs.15,000/ p.m. and she was one of the subscriber to the chit group conducted by the complainant for Rs.50,000/ for 20 months paying monthly sum of Rs.2,500/ and it was started in the month of 2015 and closed in the month of 2016, as some times two chits were bidded in a same month and she was successful bidder in the month of march 2016 by bidding a sum of Rs.8,000/ and she was go to receive Rs.42,000/ at that time the complainant demanded four blank signed cheques and one blank stamp paper for Rs.500/ as security to pay the said amount and as she have no cheque book and as per the suggestions of the complainant she informed her daughter and after convincing her daughter gave four signed blank cheques and also 60 C.C.No. 12555/2016 J got signed on the blank stamp paper which was taken on 22.3.2016, as a security gave the same to the complainant and complainant gave only Rs.37,000/ to her by deducting two installments. The DW.2 further deposed that, after the chit group was closed she demanded the complainant for return of the signed blank cheques and stamp paper but the complainant dodge the time to return the same by saying that same have been misplaced and differences arose between her and the complainant thereafter the complainant by misusing the blank signed cheques and stamp paper by filling the same on her own by her whims and fancies for Rs.4 Lakhs and Rs.5 Lakhs and presented the cheques without her and her daughter's knowledge and got the cheques dishonoured and had filed false case fabricating story as if the hand loan was taken by her daughter on 25.12.2015 and had executed on demand promissory note on stamp paper on the same day. The DW.2 further deposed that, the subject cheques involved in this case were given to the complainant in blank as security to her chit amount but same has been misused by the complainant though she had paid the chit amount to 61 C.C.No. 12555/2016 J the complainant and either she or her daughter borrowed any amount as alleged in the complaint and the address written on the On demand stamp paper is not of her address or her daughter's address and the handwriting is also not of her or her daughter's and the signature in the postal acknowledgement has been forged by the complainant as if her daughter has signed ad prayed for dismissal of the complaint.
26. It is relevant here to mention that, though the accused and her mother ie DW.2 have specifically contended that, the complainant was conducting the chit and the mother of the accused ie DW.2 was also subscriber to the chit conducted by the complainant in the month of February 2015 and she was successful bidder in the month of March 2016 by bidding for sum of Rs.8,000/ and at the time of receiving the chit amount the complainant has demanded four blank signed cheques of the accused and blank signed stamp paper from the mother of the accused, accordingly the mother of the accused had given four signed blank cheques of 62 C.C.No. 12555/2016 J accused as she had no cheque book of her own and signed blank stamp paper for Rs.500/ as security to pay the chit amount by the complainant, except the oral evidence nothing has been produced before the court. The mother of the accused during the course of her cross examination has admitted that, she had subscribed chit for sum of Rs.50,000/ for total 20 months of Rs.2,500/ each month and she had received the first chit amount in the month of March 2016 and she does not know the last chit amount and also admitted that, she does not know on which date she had given cheques to the complainant but she stated that, in the month of March 2016 she had given the cheques to the complainant and the chit was started from the month of March 2016 and closed in the month of October 2017, hence it goes to show that, the DW.2 in her evidence has stated that, the chit group started in the month of February 2015 and closed in the month of May 2016 but whereas in her cross examination she stated that, chit started in the month of March 2016 and closed in the month of October 2017, therefore the inconsistent statement of the DW.2 itself sufficient to hold that, the accused and her mother ie DW.2 have 63 C.C.No. 12555/2016 J not confident on which date the alleged chit group started and was closed, therefore the evidence of the accused and DW.2 not sufficient to hold that, the complainant was conducted the chit group and the mother of the accused ie DW.2 was also one of the subscriber to the chit and she was successful bidder in the said chit group and during the time of lending the chit amount the complainant had demanded signed blank cheque and stamp paper from the mother of the accused and in turn the mother of the accused had given four signed cheques of her daughter ie the accused and signed stamp paper to the complainant and thereafter she received the chit bid amount. The accused and her mother have also not produced any documents to show that, the mother of the accused had paid entire chit amount to the complainant and after the said chit group was closed she had demanded the complainant for return of the blank signed cheques and blank stamp paper, except the oral evidence of accused and her mother , nothing has been placed before this court to prove the defence of the accused and also failed to prove that, the cheques in question have been entered into the hands of the complainant as per the defence 64 C.C.No. 12555/2016 J taken by the accused, therefore the defence of the accused remained as allegation but same has not been proved by producing the documentary evidence or elicited from the materials produced by the complainant.
27. Therefore, the accused has not produced any documentary evidence to show that, the complainant was conducted chit group and in which the mother of the accused was also subscriber and was successful bidder and at the time of paying the bid subscription amount the complainant had collected blank signed cheques of the accused and also signed blank stamp paper from the accused and her mother towards security of the payment of bid amount and also not produced any documents to show that, the mother of the accused paid entire chit amount and sought for return of blank signed cheques and stamp paper from the complainant , in such circumstances only on the basis of oral evidence of the accused and her mother, it cannot be held that, the accused has rebutted the presumptions available to the complainant U/s.118 and 139 of N.I. Act by producing cogent and 65 C.C.No. 12555/2016 J convincible evidence. Therefore in view of the above said reasons it is very difficult to accept the defence of the accused and it can be held that, accused had failed to substantiate her defence by producing cogent and convicible evidence. In this regard, it is relevant here to refer the decision of Hon'ble Madras High Court reported in AIR 2009 (NOC) 726 MAD in the case of P. Armugam Vs. P. Veluswamy, wherein the Hon'ble High Court held that "Negotiable Instruments Act (26 of 1881) S.138 - Dishonour of cheque - Accused admits to have signed cheque and handed it over to complainant - Defence raised by accused that said cheque was issued as a blank cheque intended to be a collateral security for an unregistered chit conducted by complainant - However, no evidence has been adduced by Accused to prove that complainant was running an unregistered chit in which Accused joined as a subscribing member - there is no evidence to prove amount of chit or that Accused was a priced subscriber and the blank cheque had 66 C.C.No. 12555/2016 J been issued to ensure proper payment of future subscriptions - can be held that, cheque was issued for payment of loan obtained by accused from complainant - Accused guilty of offence. In another decision of Hon'ble High Court of Karnataka reported in 2012 (4) KCCR 2634 in the case of Sri. Prakash @ Jnana Prakash Vs. Ms. T.S. Susheela wherein the Hon'ble High Court held that "NEGOTIABLE INSTRUMENTS ACT, 1881 - Section 138 - Complaint under - Cheque dishonoured for "insufficient funds" - Plea of accused as to non -receipt of demand notice, absence of legal liability, misuse of documents given as security in an independent chit transaction - Convicted by Trial Court Confirmed by Appellate Court - Revision against The plea as to misuse of documents would not be believed due to in action of the accused. Hence in view of the principles of law laid down by the Hon'ble High Courts in the above decisions, in the present case also the Accused has not proved that, the cheque in question or the complainant has 67 C.C.No. 12555/2016 J collected two cheques at the time of giving chits amount to the mother of accused as alleged by her. In another decision of Hon'ble High Court of Karnataka reported in 2015 (1) KCCR 235 in the case of Lale Patel Vs. Sharanabasappa., wherein the Hon'ble High Court held that : NEGOTIABLE INSTRUMENTS ACT, 1881 section 138 - Dishonour of cheque for insufficiency of funds Plea of accused that he had given a blank cheque signed as security for a transaction and complainant filled up the contents and denied existence of any debt or loan - Conviction by Trial court Affirmed by Appellate Court - Revision against. Hence the Hon'ble High Court of Karnataka in the above decision clearly held that, if the Accused has taken defence that, the a blank signed cheque has been issued as a security for transaction and the complainant filled up the contents and the accused denied the existence of debt or loan in such circumstances it is for the accused to prove his defence by producing cogent and convincible evidence, if the Accused has not 68 C.C.No. 12555/2016 J proved the same in such circumstances, it cannot be held that, the cheque in question was given at the time of receiving the chits amount. In the present case also the Accused has failed to establish her defence to show that, the cheques in question and stamp paper were given at the time of receiving the chit amount from the complainant, under such circumstances the cheques so issued cannot be considered as the one issued as a security and the defence taken by the Accused is untenable one. In another decision reported in 2015 (4) KCCR 2881 (SC) in the case of T. Vasanthakumar Vs. Vijayakumari wherein the Hon'ble Apex court held that " NEGOTIABLE INSTRUMENTS ACT, 1881 Section 138 and 139 - acquittal - If justified Accused not disputing issuance of cheque and his signature on it Plea that it was issued long back as security and that loan amount was repaid Not supported by any evidence - Fact that date was printed, would not lend any evidence to case of accused Acquittal not proper. Hence in the present case also it is the 69 C.C.No. 12555/2016 J main defence of the Accused that the complainant has collected cheques and stamp paper at the time of giving chits amount to the mother of the accused and the complainant by misusing the said cheques and stamp paper has filed this complaint but the Accused has admitted the issuance of cheques and her signatures on the said cheques but no documents or proof produced by the Accused to prove her defence in such circumstances by applying the principles of law laid down in the above decision the defence of the Accused cannot be acceptable one.
28. As it is already stated in the above that, if really the cheques have been collected by the complainant at the time of paying the chit bid amount to the mother of the accused as security and even after chit amount paid by the mother of the accused the complainant did not return blank signed cheques and stamp paper, definitely the accused would have disclosed this fact by way of issuing reply to the notice received from the complainant before filing of this complaint but no such efforts have been made by the complainant.
70C.C.No. 12555/2016 J Even the accused or her mother should have issued notice to the complainant for return of blank signed cheques and stamp paper or if really the complainant did not return the blank signed cheques and stamp paper to the mother of the accused or accused, definitely they would have initiated legal action against the complainant either by filing the police complaint or complaint before the courts of law or atleast they should have issued stop payment instructions to the banker of the accused but no such efforts have been made by the accused or her mother, therefore the conduct of the accused or her mother may leads to draw an adverse inference against them that, they had not taken any action or made efforts to take or initiate action against the complainant for alleged misuse of the cheques in question only for the reason that, the cheques in question have been issued towards discharge of the liability in question not for any other reason, therefore the defence of the accused that, the complainant has misused the blank signed cheques of the accused and stamp paper by filing this complaint cannot be acceptable one. In this regard, it is relevant here to refer the decision of 71 C.C.No. 12555/2016 J Hon'ble Apex Court of India reported in AIR 2018 SC 3601 in a case of T.P.Murugan(dead) Thr. Lrs.V. Bhojan Vs. Posa Nandi, rep. Thr. Lrs. PA holder, T.P. Murugan V. Bhojan, wherein the Hon'ble apex Court held that "Negotiable Instruments Act (26 of 1881) Ss.118, 138, 139 - Dishonour of cheque - Presumption as to enforceable debt cheques allegedly issued by accused towards repayment of debt Defence of accused that 10 cheques issued towards repayment of loan back in 1995 - behavior of accused in allegedly issuing 10 blank cheques back in 1995 and never asking their return for 7 years, unnatural - Accused admitting his signature on cheques and pronote, presumption under S.139 would operate against him - Complainant proving existence of legally enforceable debt and issuance of cheques towards discharge of such debt Conviction, Proper." Hence by applying the above principles of law to the present facts of the case in the present case though the Accused has taken defence that, the 72 C.C.No. 12555/2016 J complainant had collected her four signed blank cheques and stamp paper from her mother at the time of paying the chit bid amount to her mother and even after entire chit amount paid by her mother and demanded for return of the cheques in question and stamp paper but the complainant has misused the subject cheques and stamp paper which were alleged to have been given to the complainant towards security in respect of chit transaction amount, but the said defence has not been proved by the Accused, under such circumstances, it can be held that, the accused or her mother have not made any efforts to get return of the cheques in question and stamp paper alleged to have been given to the complainant for security of the chit amount received from the complainant in respect of alleged chit business, therefore, the said unnatural conduct of the accused in non taking of action leads to draw an adverse inference against the accused that, the cheques in question issued by the accused towards discharge of the liability in question and presumption U/s.139 of N.I. Act would operate against her, as she has admitted the signatures and cheques in question are belong to 73 C.C.No. 12555/2016 J her.
29. It is also relevant here to mention that, the Accused and her mother ie DW.1 and DW.2 in their evidence have specifically taken defence that, the cheques in question and stamp paper were collected by the complainant as blank signed cheques and stamp paper from the accused and her mother as security towards the payment of chit bid amount to the mother of the accused, but the complainant misused the said blank signed cheques and stamp paper by filling up all the particulars in the cheques and stamp paper and has presented for encashment and filed false complaint against accused. As it is already held in the above that, in support of defence of the accused, nothing has been produced before the court to prove her defence, except the oral evidence nothing has been placed before the court. Even for sake of discussion, if the defence of the Accused i.e. the cheques in question and stamp paper have been given to the complainant towards security of the chit bid amount received by the mother of the accused unless and until the said defence is proved by the accused it cannot be held 74 C.C.No. 12555/2016 J that, the cheques and stamp paper have been given for that purpose, in such circumstances also it attracts the offence U/s.138 of N.I.Act, in this regard, it is relevant here to refer the decision of Hon'ble Apex court of India reported in (2016) 10 SCC 458 in the case of Sampelly Sathyanarayana Rao Vs. Indian Renewable Energy Development Ltd, wherein the Hon'ble Apex Court held that " Even cheque issued as security for payment of loan installments also covered under the purview of sec. 138 of Negotiable Instruments Act". In another decision reported in 2015 (4) KCCR 2881 (SC) in the case of T. Vasanthakumar Vs. Vijayakumari wherein the Hon'ble Apex court held that " NEGOTIABLE INSTRUMENTS ACT, 1881 Section 138 and 139
- acquittal - If justified Accused not disputing issuance of cheque and his signature on it Plea that it was issued long back as security and that loan amount was repaid Not supported by any evidence - Fact that date was printed, would not lend any evidence to case of accused 75 C.C.No. 12555/2016 J Acquittal not proper. Hence by applying the above principles of law to the present facts of the case in this case also, the accused has miserably failed to prove that, the cheques in question and stamp ppaer have been collected by the complainant towards security of the chit amount and the mother of the accused paid the entire chit amount but no satisfactory evidence led by the accused to prove the said defence, therefore the defence of the accused cannot be acceptable one and the cheques in question have been issued towards discharge of the liability in question as the accused admitted the issuance of cheques in question in favour of the complainant and the subject cheques bears her signatures and belongs to her account, in such circumstances it attracts the offence U/s.138 of the N.I.Act.
30. It is also important to note here that, the Accused has not denied or disputed that the cheques in question as well as the signatures therein do belong to her and she has failed to prove her defence by producing cogent and convincible evidence, in such circumstances it can be held that, 76 C.C.No. 12555/2016 J the Accused has failed to explain and prove how the cheques in question have come to the possession of the complainant, this would also give rise to an adverse inference against her, this proposition of law finds support from the decisions of Hon'ble High Court of Karnataka reported in 2010(1) KCCR 176 in the case of "Siddappa Vs. Manjappa" and in the decision of Hon'ble Apex court of India decided in Crl.A.No.664 of 2012 dated: 19.9.2019 in the case of "M.Abbas Haji Vs. T.M.Chennakeshava"
held that, " the Accused has to explain how the cheque entered into the hands of complainant".
Therefore for the above said reasons the defense taken by the accused cannot be acceptable one and accused has miserably failed to rebut the presumption available in favour of the complainant by producing cogent and convincible evidence.
31. Therefore considering all these aspects of the case and totality of the circumstances and on careful and meticulous appreciation of evidence adduced on behalf of the complainant and accused the complainant has successfully established beyond 77 C.C.No. 12555/2016 J all reasonable doubt that, she has lent an amount of Rs.9 lakhs to the Accused and in turn the Accused has issued the Ex.C.2 and C.3 cheques in question in her favour towards discharge of the said loan amount and thereafter the complainant has presented the said cheques through her banker and same were returned dishonoured with an endorsement of "Funds Insufficient"and thereafter she got issued legal notice to the accused and the said notice was served on her, inspite of it, the Accused did not paid the cheques amount, hence the complainant filed the present complaint against the accused. On the other hand, the accused has failed to rebut the presumption available in favour of the complainant with regard to the existence of legally recoverable debt under Ex.C.2 and C.3 Cheques. Therefore accused has committed an offence punishable U/s.138 of N.I. Act, accordingly for the above said reasons this point is answered in the Affirmative.
32. Point No.2: Negotiable Instrument Act was enacted to bring credibility to the cheque and the very purpose of enactment is to promote the use 78 C.C.No. 12555/2016 J of negotiable instrument, while to discourage the issuance of cheque without having sufficient funds in their accounts. Such being the case the intention of the legislature is that, complainant be suitable compensated while accused be punished for her act. Hence while awarding the compensation the said fact is to be kept in mind and suitable compensation is awarded to the complainant certainly it will not cause injustice to the accused, accordingly the complainant is entitled for the compensation as ordered by the court and for the said reasons, it is just and proper to pass the following : ORDER Acting U/sec.255(2) of Cr.P.C.
the accused is convicted for the offence punishable U/sec.138 of N.I.Act.
The accused is sentenced to pay a fine of Rs.9,15,000/= (Rupees Nine Lakhs and Fifteen Thousand Only) within one month from the date of order, in default she shall under go simple imprisonment for a period of (1) one month for the offence punishable U/sec.138 of N.I.Act.
79C.C.No. 12555/2016 J Further acting U/sec.357(1) of Cr.P.C. out of the fine amount on recovery, a sum of Rs.9,10,000/= (Rupees Nine Lakhs and Ten Thousand Only) shall be paid as compensation to the complainant.
Further acting U/sec.357(1)(a) of Cr.P.C. out of fine amount on recovery a sum of Rs.5,000/= (Rupees Five Thousand only) shall be defrayed as prosecution expenses to the state.
The Bail bond of the accused stand cancelled after appeal period is over.
. Office is directed to furnish free certified copy of this judgment to the Accused incompliance of Sec. 363(1) of Cr.P.C.
(Directly dictated to the stenographer online, printout taken by her, verified, corrected and then pronounced by me in the open Court on this the 9th November 2021).
(SRI.S.B. HANDRAL), XVI ACMM, Bengaluru City.
80C.C.No. 12555/2016 J ANNEXURE
1. List of witness/s examined on behalf of the Complainant: PW1 : Smt. L.Y.Manjula
2. List of documents exhibited on behalf of the Complainant: Ex.C.1 : On Demand Pronote dt:
25.12.2015 Ex.C.1(a) : signature of the accused;
(Marked through DW.2) Ex.C.2(b) : Signature of DW.2 (Marked through DW.2) Ex.C.2 and C.3 : Original Cheques Ex.C.2(a) & 3(a): Signatures of the accused Ex.C.4 & 5 : Bank Challans Ex.C.6 & 7 : Bank Memos Ex.C.8 : Office copy of legal notice Ex.C.9 : postal receipt Ex.C.10 : postal acknowledgements
3. List of witness/s examined on behalf of the Accused: DW.1 : Smt. Vinutha.N DW.2 : Smt. Jayarathna
4. List of documents exhibited on behalf of the Accused: Ex.D.1 :Original Marriage Certificate Ex.D.2 :True copy of Aadhar Card of DW1 81 C.C.No. 12555/2016 J Ex.D.3 :True copy of Election ID Card of DW1 Ex.D.4 :True copy of Election ID Card of husband of the DW1 Ex.D.5 :Notarised copy of the Aadhar card of DW.2 (Marked through DW.2) (SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.
82C.C.No. 12555/2016 J 9.11.2021 Case called out, complainant and counsel for complainant are absent.
Accused and counsel for accused absent. No representation. Judgment pronounced since the fine amount and default sentence is only imposed against the Accused, no separate sentence is imposed against the Accused vide separate order, ORDER Acting U/sec.255(2) of Cr.P.C.
the accused is convicted for the offence punishable U/sec.138 of N.I.Act.
The accused is sentenced to pay
a fine of Rs.9,15,000/= (Rupees
Nine Lakhs and Fifteen
Thousand Only) within one
month from the date of order, in
default she shall under go simple
imprisonment for a period of (1)
one month for the offence
punishable U/sec.138 of N.I.Act.
Further acting U/sec.357(1) of
Cr.P.C. out of the fine amount on
recovery, a sum of Rs.9,10,000/=
(Rupees Nine Lakhs and Ten
Thousand Only) shall be paid as
compensation to the complainant.
Further acting U/sec.357(1)(a)
of Cr.P.C. out of fine amount on
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recovery a sum of Rs.5,000/=
(Rupees Five Thousand only)
shall be defrayed as prosecution
expenses to the state.
The Bail bond of the accused
stand cancelled after appeal
period is over.
. Office is directed to furnish free
certified copy of this judgment to
the Accused incompliance of Sec.
363(1) of Cr.P.C.
XVI ACMM, B'luru.
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