Bangalore District Court
Aged About 58 Years vs Aged About 50 Years on 9 June, 2020
1
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
DATED THIS THE 9th DAY OF JUNE, 2020
PRESENT
Sri. K. GURUPRASAD, B.A., LL.B (Spl.)
XIV ADDL. C.M.M., BENGALURU
CASE NO C.C. NO.54855/2019
Mrs. Jyothi .A
W/o. Sri. K. Anand
COMPLAINANT Aged about 58 years, R/at Chuna Lane, Nagawara
Main Road, Bengaluru - 560 045.
Mrs. Nagamma
W/o. Sri. Raja
ACCUSED Aged about 50 years, Presently R/at No.493, 12 th "C"
Cross, 2nd Block, H.B.R. Layout, Ward No.24,
Bengaluru - 560 043.
OFFENCE U/s.138 of Negotiable Instruments Act
PLEA OF THE
ACCUSED Pleaded not guilty
FINAL ORDER Accused is convicted
(K. GURUPRASAD)
XIV ADDL. C.M.M., BENGALURU
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JUDGMENT
The present complaint is filed under Sec.200 Cr.PC for the offence punishable under Section 138 of Negotiable Instruments Act.
2. It is the case of the complainant that, the accused approached the complainant in first week of September 2018 and availed hand loan of Rs.75,000/- and agreed to repay in the month of December 2018. Towards repayment of said amount, the accused issued a cheque bearing No.553064 dtd.19.1.2019 for Rs.75,000/- drawn on Syndicate Bank, Kadugondanahalli branch, Bengaluru in favour of the complainant. When the complainant presented the said cheque for encashment to her banker for collection, said cheque came to be dishonoured on 21.1.2019 for the reason "no balance". When the complainant got issued legal notice to the accused on 19.2.2019 by registered post calling upon the accused to pay the cheque amount, it was returned with postal shara as "insufficient address". The accused has not complied with the said notice nor replied to the said notice and as such, the accused is guilty of the offence punishable under Section 138 of N.I. Act. Hence this complaint.
33. After filing of this complaint, delay was condoned after notice of accused and cognizance was taken for the offence punishable U/s.138 of N.I. Act. Sworn statement of the complainant was recorded. This court was satisfied as to prima facie case made out by the complainant for issuance of the summons. Accordingly, criminal case was registered against the accused and summons was ordered to be issued.
4. In pursuance of court process issued by this court, the accused has appeared through her counsel and got enlarged on bail. Thereafter plea was recorded. The accused has pleaded not guilty and claimed for trial.
5. In order to prove her case, the complainant herself examined as PW.1 and got marked Ex.P1 to P5 and closed complainant side of evidence. Thereafter, statement of the accused U/s.313 of Cr.PC was recorded. The accused denied incriminating materials in the evidence of complainant against her. Then, the accused examined herself as DW.1 and got marked Ex.D1 to D3 and closed her side of defence evidence.
6. Heard both sides. Perused the complaint, evidence on record and court records.
7. The following points arise for my consideration and determination;
41) Whether the complainant proves that the accused has issued cheque in question in discharge of legally enforceable debt or liability as contended by her?
2) Whether the complainant further proves that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act?
3) Whether the complainant is entitled for the relief's as prayed in the complaint?
4) What Order?
8. The above points are answered as under;
Point No.1 to 3 : In affirmative,
Point No.4 : As per the final order,
for the following.......
REASONS
9. Point Nos. 1 and 2: Since these two points are inter linked and to avoid repetition they are taken together for discussion.
10. As regard to limitation to file this complaint, it is clear from Ex.P1 to P5 that when the complainant presented the cheque in question to her banker within three months 5 from the date of said cheque, said cheque came to be dishonoured with bank shara "no balance" and that when the complainant got issued statutory notice U/s.138 of N.I. Act (within 30 days from the date of intimation of dishonour of said cheque) to the accused by registered post calling upon the accused to pay the cheque amount within 15 days from the date of receipt of said notice, the said notice came to be returned with postal shara "insufficient address". However, it is pertinent to note that the accused has not disputed during trial that the address of the accused shown in the legal notice and postal cover is incorrect or that she has received the statutory notice. Therefore, there is statutory presumption under Sec.27 of General Clauses Act that notice sent by registered post is served on the accused. The burden of rebutting said presumption is on the accused. But the accused has not adduced any evidence to rebut such presumption. In fact DW.1 has admitted during examination- in-chief and again during cross-examination that she has received legal notice got issued by the complainant. Therefore it can be concluded that the statutory notice U/s.138 of N.I. Act came to be duly served on the accused. The delay in filing this complaint is already condoned by this court. Hence, all the legal formalities U/s.138 and 142 of N.I. Act are complied with.
611. As regard to legally enforceable debt or liability, in 2010 (11) SCC 441 - (Rangappa Vs Sri. Mohan), it is held that;
" The presumption mandated by Sec.139 of the Act includes a presumption that there exists a legally enforceable debt or liability. This is of course in the nature of a rebutable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, herein, there can be no doubt that there is an initial presumption which favours the complainant"..............."when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the presumption can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own".
12. In ILR 2006 KAR 2958 (Rajendraprasad Vs M. Shivaraj), it is held that Bank Manager of accused is more competent person to say whether it is the signature of the accused or not with reference to the specimen signature. In the bank's intimation, the discrepancy of the signature with the specimen signature is not the ground for dishonour. In the instant case, the banker does not mention that the signature is discrepant and does not tally with the specimen signature.
7Therefore, the self -serving denial of signature in the cheque cannot be a good evidence to come to the conclusion that the signature on the cheque is not that of the accused. The banker's no objection for the signature in the cheque is one of the strongest circumstance to corroborate that the signature on the cheque is that of the accused. The possession of the loose cheque with the complainant suggests an inference of endorsement and delivery of incohate instrument which impliedly admits the issuance of cheque in favour of the complainant.
13. If the facts and circumstances of this case are considered in light of above said principles of law, it is clear that though accused has admitted that Ex.P1-cheque is drawn on her bank account, she has denied her signature on the said cheque. However in Ex.P2 bank intimation, the cheque is dishonoured for the reason "no balance" and not for the reason "signature differs". In other words, in the said bank intimation, discrepancy of the signature with specimen signature is not the ground for dishonour. In the present case, the banker does not mention that the signature is discrepant and does not tally with the specimen signature. The banker of the accused is more competent person to say whether it is signature of the accused or not with reference to specimen 8 signature. Therefore, the self-serving denial of signature in the cheque cannot be a good evidence to come to the conclusion that the signature on the cheque is not that of the accused. The accused has not taken any steps to summon her bank Manager to produce her specimen signature in the bank and to give evidence in proof of her contention that the signature of Ex.P1-cheque is not her signature. The accused has also not taken any steps to request this court to refer the disputed signature on the cheque to handwriting expert to ascertain whether signature on Ex.P1-cheque is that of accused. The fact of banker's no objection for the signature in the cheque is one of the strongest circumstance to corroborate that the signature on the cheque is that of the accused. The possession of the loose cheque with the complainant suggests an inference of endorsement and delivery of incohate instrument which impliedly admits the issuance of cheque in favour of the complainant. Therefore the burden of proving that the signature on the cheque is not her signature and that she has not issued the cheque in question for any debt or liability in favour of the complainant is on the accused. The accused has failed to prove the said fact.
14. It is the case of the complainant that when accused who is her sister approached her in September 2018 for hand loan of Rs.75,000/- for expenses of construction of house, the 9 complainant lent hand loan of Rs.75,000/- to the accused in September 2018. It is further case of the complainant that when the complainant requested the accused to repay the said hand loan, the accused finally issued Ex.P1-cheque in January 2019, which came to be dishonored. On the other hand, the accused has denied availment of loan of Rs.75,000/- from the complainant and issuance of Ex.P1-cheque towards repayment of said loan. It is specific defence of the accused that she had sold her old house in 2018 for Rs.18,50,000/- and that when the complainant and another sister approached the accused to give share in the said sale proceeds, the accused gave a sum of Rs.4,60,000/- each to complainant and another sister. It is specific defence of the accused that even thereafter complainant, another sister and three other persons including a person by name Johnson used to come to house of the accused frequently and insist the accused to pay further amount and as such accused promised to pay to her sisters further amounts as far as possible. It is further defence of the accused that in 2018 her cheque book and cash of Rs.5,000/- which were kept in the house of the accused were lost. It is further defence of the accused that when the accused lodged police complaint on 12.7.2018 as per Ex.D1 before K.G. Halli Police Station, the police issued endorsement to the complainant as per Ex.D2. It is further defence of the accused 10 that accused has also submitted intimation to her Syndicate Bank, K.G. Halli branch as per Ex.D3 on 12.7.2018 to stop payment of the cheques on the ground of loss of cheque book. It is further defence of the accused that when she received notices from her sisters including the complainant, she came to know that the said lost cheques are with her two sisters including the complainant. It is further defence of the accused that the complainant and another sister of the accused have misused two unsigned and blank cheques and have filed false complaints.
15. On careful perusal of evidence on record, it is clear that defence of the accused is not probable nor does it inspire confidence of this court. No doubt, the accused has produced Ex.D1 to D3 in support of her defence that her cheque book of Syndicate Bank, K.G. Halli branch had been misplaced in 2018. However, the complainant has seriously disputed Ex.D1 to D3 documents and contended that those documents are not genuine documents and that cheque book alleged to have been misplaced has no connection with the cheque in question. It is pertinent to note that Ex.D1 does not bear any seal or signature of the police official for having received said police complaint. Even though Ex.D2 which is copy of endorsement purporting to have been issued by K.G. Halli 11 Police Station, bears seal of that station, it does not bear the signature of the police official who issued Ex.D2. Even though the accused claims that original document of Ex.D2 is misplaced, she does not disclose on or in which date, month or year said original document was misplaced. If the accused had really submitted representation to her banker for stop payment of cheque on the ground of loss of cheque book, as per Ex.D3, the banker of the accused would have returned Ex.P1-cheque to the complainant with bank shara "payment stopped by the drawer". On the contrary, when the complainant presented Ex.P1-cheque in this case, the banker of the accused has returned Ex.P1-cheque with bank shara "no balance" and not with bank shara "payment stopped by the drawer". This fact also raises serious doubt regarding stop payment instruction by accused to her banker as per Ex.D3. Under these doubtful circumstances, the accused should have summoned the police official of K.G. Halli Police Station and bank official of Syndicate Bank, K.G. Halli branch to prove these documents.
16. Furthermore, the accused has stated that in Ex.D1 and D3 that the cheque book and cash of Rs.3,000/- etc., which were kept in her bag were misplaced while traveling. This is quite contrary and inconsistent with defence of the 12 accused that cheque book and cash of Rs.5,000/- which were in the house were lost and stolen. If really cheque book of the accused was stolen or lost from the house of the accused, the accused would have mentioned the said fact of loss of cheque book in the house, in her police complaint and representation made to her bank. In other words, if the cheque book was stolen from her house, the accused would not have mentioned in her police complaint and representation made by her to the bank that the cheque book which was kept in her bag was misplaced while traveling. Moreover, the accused has not disclosed in her police complaint and representation made by her to the bank as to how many cheques were misplaced and what are the serial numbers of said cheques. In absence of these material details, it is not safe to rely upon these documents to conclude that Ex.P1-cheque is the one of cheques in the cheque book which was alleged to have been misplaced in July 2018.
17. It is pertinent to note that the accused has not made direct allegation against complainant and another sister that they have stolen cheque book including Ex.P1-cheque from the house of the accused. On the other hand, the accused contends in this case that the complainant and another sister and three other persons used to come to house 13 of the accused frequently to insist the accused to give share in the sale proceeds and that in July 2018 the cheque book of the accused including Ex.P1-cheque which was kept in the house of the accused was stolen and lost. In fact DW.1 has deposed on page 8 of her cross-examination that she does not know how Ex.P1-cheque came in custody of the complainant. In other words, the accused is not certain and sure regarding her defence. Further it is clear from cross-examination of DW.1 that the house of the accused consists of ground and first floor. It is highly improbable that the complainant and another sister of the accused were aware of the place in the house of the accused where the accused had kept the cheque book and that complainant and another sister had stolen the cheque book in the very presence of accused at the time of visiting the house of the accused. Normally valuable things such as cheque book and cash are kept in the safe place and as such the same cannot be easily accessible to the visitors. In view of these facts and circumstances of the case, it is highly improbable that the complainant and another sister of the accused stole the cheque book including Ex.P1-cheque.
18. Even subsequent conduct of the accused also goes against the defence of the accused that the cheque book including Ex.P1-cheque was lost/stolen in July 2018. If the complainant and another sister of the accused had really 14 stolen the cheque book from the house of the accused, the accused would have taken legal action against them at least when the accused came to know regarding the possession of said cheques with complainant and another sister. No doubt, the accused contends that she has lodged police complaint as per Ex.D1 and submitted representation to the bank for stop payment as per Ex.D3. However these documents are doubtful documents and there is no sufficient evidence to show that Ex.P1-cheque has any connection with cheque book alleged to have been misplaced. If the complainant had really stolen Ex.P1-cheque from the house of the accused, the accused would have given fresh police complaint or further statement before K.G. Halli Police Station in which she had already lodged Ex.D1-complaint. However the accused has not lodged such fresh police complaint against complainant nor has she given further statement before the police that Ex.P1-cheque which was one of the cheques in the cheque book misplaced by her was stolen by the complainant. Further even though DW.1 has deposed during examination-in- chief and cross-examination that the accused has received legal notices got issued by the complainant and another sister, the accused has not got issued any reply notice to the said legal notices denying any loan transaction between her and complainant and alleging that the said cheques have 15 been stolen from her house. Any prudent person under similar circumstances would have promptly got issued reply notice to the legal notice got issued by the complainant, denying the loan transaction and making allegation of loss of cheque from her house. This inaction on the part of the accused to issue reply notice and to take necessary legal action against the complainant (even when she came to know that the cheque in question is in possession of the complainant) raises serious doubt regarding the defence of the accused.
19. In view of my above discussion, I am of considered opinion that the accused has utterly failed to prove or probabalize her defence and thereby to rebut statutory presumption in favour of the complainant. It clearly appears from the evidence on record that defence of the accused is only an afterthought without any basis. Unless and until the accused rebut the statutory presumption with convincing and cogent evidence, burden cannot be shifted on the complainant. As discussed above, the complainant has placed sufficient materials on record to establish her contention as put by the complainant. The evidence on record is sufficient to accept the case of the complainant that accused has issued cheque in question towards discharge of legally enforceable 16 debt or liability and the complainant has proved all the requirements of Sec.138 of N.I. Act, so as to constitute the offence against the accused. Therefore, Point Nos.1 & 2 are in affirmative and answered accordingly.
20. Point No.3: As discussed in connection with Point Nos.1 & 2, the complainant has proved her case as to commission of the offence punishable U/s.138 of N.I. Act by the accused. The punishment prescribed for the said offence is imprisonment for a period which may extend to two years or with fine. Considering the facts and circumstances of this case, nature, year of the transaction, nature of the instrument involved, provisions of Sec.117 of N.I. Act, cost of litigation and the rate of interest proposed by Hon'ble Supreme Court in 2012 (1) SCC 260 (R.Vijayan Vs Baby), etc., this court is of the considered view that it is just and desirable to impose fine of Rs.90,000/- and out of the said amount a sum of Rs.5,000/- has to be remitted to the State and the remaining amount of Rs.85,000/- is to be given to the complainant as compensation as provided U/s.357(1) of Cr.PC and accordingly Point No.3 is answered in Affirmative.
21. Point No.4: For the reasons discussed in connection with Point Nos.1 to 3 this court proceed to pass the following......
17ORDER Acting under Section 255(2) of Cr.PC accused is hereby convicted for the offence punishable under Section 138 of Negotiable Instruments Act. The accused shall pay a fine of Rs.90,000/- for the offence punishable U/s.138 of N.I. Act. In default of payment of fine amount, the accused shall under go simple imprisonment for a period of two months.
By exercising the power conferred U/s.357(1) of Cr.PC., out of total fine amount of Rs.90,000/-, a sum of Rs.85,000/- is ordered to be paid to the complainant as compensation and Rs.5,000/- is ordered to be remitted to the State.
In view of limited functioning of courts under SOP on account of CORONAVIRUS lock down, the sentence is suspended (without application of accused) for a period of 30 days from this day and the bail bond of the accused is continued till expiry of said period of 30 days.
The cash security deposited by the accused is ordered to be continued till expiry of the appeal period.
Supply the free copy of this judgment to the accused forth with.
(Dictated to the stenographer, transcript thereof, computerized and print out taken by him is verified, corrected and then pronounced by me in open court on this the 9th Day of June, 2020) (K. GURUPRASAD) XIV A.C.M.M., Bengaluru 18 ANNEXURE Witnesses examined for the complainant:
PW.1 : Mrs. Jyothi .A
Witnesses examined for the defence:
DW.1 : Mrs. Nagamma
Documents marked for the complainant:
Ex.P1 : Cheque
Ex.P2 : Cheque return memo
Ex.P3 : Legal Notice
Ex.P4 : Postal receipt
Ex.P5 : Returned RPAD cover
Documents marked for the defence:
Ex.D1 : Police complaint dtd.12.7.2018
Ex.D2 : Endorsement
Ex.D3 : Stop payment letter dtd.12.7.2018
(K. GURUPRASAD)
XIV A.C.M.M., BENGALURU