Bangalore District Court
Smt.Triveni vs Miss.Flavina.F on 7 July, 2020
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 7th day of July - 2020
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.24456/2017
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Smt.Triveni,
W/o.Shyam Sunder,
Aged about 28 years,
R/at No.46/1, 1st Main Road,
10th Cross, Gajajnana Nagara,
Vishvaneedum Post,
Near Srigandhada School,
Sunkadakatte, Bengaluru-91.
(Rep. by Sri.B.H.Chikkanna, Adv.)
V/S
Accused : Miss.Flavina.F,
D/o.Margaret,
Aged about 27 years,
R/at. No.76, Sri Ashirvadh Nilayam,
2nd Cross, Kamakshipalya,
Bengaluru-79.
(Rep.by Sri.A.Nagaraja, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Convicted.
DATE OF ORDER : 07.07.2020.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
Judgment 2 C.C.No.24456/2017
JUDGMENT
The complainant has presented the instant complaint against the accused on 21.09.2017 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheques of Rs.5,45,000/-.
2. In a nut shell, the case of the complainant is:
The accused being a friend of complainant from the school days, known to her from past 20 years. In that acquaintance, the accused had approached the complainant for hand loan of Rs.6 lakhs in the month of October, 2016, to meet the family necessities and promised the complainant to return the hand loan amount within 6 months. Believing the words of accused, the complainant arranged the amount of Rs.3 lakhs in the month of October, 2016 by way of pledging the gold ornaments in the name of her husband at State Bank of Mysore, Turuvekere Branch, and paid to the accused. Again, the complainant had paid sum of Rs.2 lakhs to the accused in the month of December, 2016 by way of cash. Again, the accused demanded the amount with the complainant, then complainant by pledge her gold ornaments at Muthoot Finance in the month of January, 2017 for sum of Rs.45,000/- and paid to the accused. Accordingly, the complainant had paid sum of Rs.5,45,000/- in all to the accused Judgment 3 C.C.No.24456/2017 during October, 2016, December, 2016 and January, 2017 respectively, with request repay the same within 6 months.
The complainant has further averred and alleged that, after borrowing the said amount, the accused not repaid the hand loan amount within 6 months. Then, complainant approached the accused for repayment of hand loan amount, then she pleaded for some more time, but complainant insisted for payment as early as possible. On the repeated requests made by the complainant in the month of May, 2017, the accused towards part satisfaction of discharge of her liability, she had issued a cheque bearing No.090692 dated:30.05.2017 drawn on Karnataka Bank Ltd., Ashok Nagar Branch, Bengaluru for sum of Rs.95,000/- in favour of complainant and requested the complainant not to present the said cheque and clear the entire hand loan amount during July, 2017. Believing the words of accused, the complainant had not presented the said cheque for encashment.
The complainant has further contended that, again she demanded the hand loan amount in the month of July, 2017 for repayment, but she pleaded some more time and complainant insisted for make payment at the earliest. In the month of July, 2017, the accused towards discharge of her liability got issued the cheque for Rs.4,50,000/- dated:27.07.2017 bearing No.645122 Judgment 4 C.C.No.24456/2017 drawn on Karnataka Bank Ltd., Ashok Nagara Branch, Bengaluru, in favour of complainant and advised her to present both the cheques for encashment and by that time, it would immediately honoured.
The complainant has further alleged that, believing the representation of the accused, the complainant accepted the cheques and presented them for encashment through her banker viz., State Bank of India, Magadi Road Branch, Bengaluru. But the said cheques as per endorsement dated:29.07.2017 and 31.07.2017 came to be dishonoured for the reasons stated "Funds Insufficient". Thereafter, the complainant got issued legal notice to the accused on 26.08.2017 by way of R.P.A.D. and the same came to be duly served on her. Despite that, either she paid the amount covered under the cheques or reply the legal notice. Thereby, she committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
3. After receipt of the private complaint, my predecessor in office took the cognizance and got registered the PCR and recorded the sworn statement. Since made out prima-facie grounds to proceed against the accused for the alleged offence, got issued process.
Judgment 5 C.C.No.24456/2017
4. In response to the summons, the accused appeared through her counsel and obtained the bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to her, wherein, she denied the same and claimed to have the defence.
5. To prove the case of the complainant, she herself choosen to examined as PW.1 and got marked Exs.P1 to P11. The PW.1 was subjected for cross-examination by the advocate for the accused.
6. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein the accused denied the same and the answer given by her was recorded. In support of the defence, the accused herself was examined as DW.1 and got marked Exs.D1 to D4 and also subjected for cross-examination by the advocate for the complainant.
7. I have heard the arguments of both side counsels.
8. On going through the rival contentions, based on the substantial evidence available on record, the following points have been arising for determination:
1) Whether the complainant proves beyond the reasonable doubt that, the amount made Judgment 6 C.C.No.24456/2017 mentioned in Exs.P1 & P2 cheques for sum of Rs.5,45,000/- is the legally existing debt payable by the accused to the complainant?
2) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?
3) What Order?
9. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Affirmative Point No.2 : In the Affirmative Point No.3 : As per final order, for the following:
REASONS UNDISPUTED FACTS
10. The complainant and accused are known to each other from their school days is not in dispute. The fact that, their residential addresses made mentioned therein is not in dispute. The fact that, questioned cheques and signatures therein is of accused is not in dispute. The fact that, Mary Alphonza was the teacher, thought in their primary schools, who is relative of the accused is not in dispute. The fact that, exchange of legal notices between complainant and accused is not in dispute. The fact that, against the said Mary Alphonza as per Exs.D1 to D4, the above Judgment 7 C.C.No.24456/2017 referred persons have lodged police complaints by alleging, she cheated without giving their chit money is not in dispute. The fact that, in all the complaints either complainant or the accused are not the parties or their names are not whispered is not in dispute. The fact that, the accused is working employee is not in dispute.
11. POINT NOs.1 and 2: Since both the points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.
The PW.1 to prove her case choosen to examined herself and filed affidavit by reiterating the complaint averments in toto, and produced the documents at Exs.P1 to P11, they are:
a) Exs.P1 and P2 are the cheques bearing Nos. 090692 and 645122 issued by the accused for sum of Rs.95,000/- & Rs.4,50,000/-, in all Rs.5,45,000/-
dated:30.05.2017 and 27.07.2017 respectively, both the cheques are drawn on Karnataka Bank Ltd., Ashok Nagar, Bengaluru.
b) Exs.P1(a) and P2(a) are the alleged signatures of accused.
c) Exs.P3 and P4 are the Bank Memos dated:29.07.2017 and 31.07.2017.
d) Ex.P5 is the Legal Notice dated:26.08.2017.
e) Ex.P6 is the Postal receipt.
f) Ex.P7 is the professional courier receipt dated:28.08.2017.
g) Ex.P8 is the postal acknowledgment card.
Judgment 8 C.C.No.24456/2017
h) Ex.P9 is the bank pass book issued by State Bank of Mysore.
i) Ex.P9(a) is the relevant entries at Ex.P9.
j) Exs.P10 and P11 are the gold loan ledger extracts dated:27.03.2017 and 31.01.2017 pertaining to the complainant issued by Muthoot Finance.
12. The PW.1 was subjected to the cross-examination by the advocate for the accused. In support of her case the complainant through her counsel has produced the citations and relied upon same, they are;
a) Crl.A.No.1545/2019
b) AIR 2018 SC 3173
c) AIR 2019 SC 1876
d) AIR 2019 SC 2446
13. In order to prove the defence of the accused, she herself choosen examined as DW.1 and got produced the documents at Exs.D1 to D4. They are:
a) Ex.D1 is the certified copy of FIR in Cr.No.30/2016 the complaint lodged by one T.S.Umesh before the Kamakshipalya Police Station against Merry and others.
b) Ex.D2 is the certified copy of FIR in Cr.No.28/2016 the complaint lodged by one Anusuya before the Kamakshipalya Police Station against Merry Alfansa and others.
c) Ex.D3 is the certified copy of FIR in Cr.No.16/2016 the complaint lodged by one Thimmegowda before the Kamakshipalya Police Station against Merry Alfansa and Judgment 9 C.C.No.24456/2017
d) Ex.D4 is the certified copy of FIR in Cr.No.528/2015 the complaint lodged by one Naveen Taj before the Kamakshipalya Police Station against Merry Alfansa and others.
The DW.1 was subjected to the cross-examination by the advocate for the complainant.
14. While appreciate the materials on records and evidence, this court has gone through the decisions stated supra apart from the other decisions.
15. After cross-examination of PW.1, the incriminating evidence made against the accused was read over and explained to her as required under Section 313 of Cr.P.C., wherein the accused has denied the incriminating evidence made against her. In order to prove her probable defence, the accused choosen to entered into the witness box by filing affidavit evidence and examined on oath as DW.1. Since, the complainant has not opposed the affidavit evidence of the accused, the same was taken on record.
In the affidavit evidence of accused, she totally denied the monetary transaction alleged to be held between complainant and accused as contended by the complainant. The accused has set out her probable defence stating that, she and complainant have studied in a school by name Shibha and she was a senior to the accused. During their studies in the said school, Mary Alphonza Judgment 10 C.C.No.24456/2017 was a English teacher in the said school and she was running a chit business in the school locality, apart from teaching the profession from more than 25 years and she was very famous in the said chit business. The accused was also one of the member in the said chit. During opening of the said chit, the said Mary Alphonza used to collect two blank cheques from all he members for security purpose. The complainant is being one of the chit member with the Mary Alphonza, she has taken her two cheques from her house illegally, when the said Mary Alphonza arrested by Kamakshipalya Police. The said police have filed 4 different cases against her and also on her 2 sons and husband. The said Mary Alphonza was arrested and her family members were absconded from their house, during that point of time, the chit members have siege the house of her and took the house articles, at that point of time, the complainant has illegally took those 2 cheques without the knowledge from Mary Alphonza's house and filed this false case.
The accused has further alleged that, there was no any kind of transaction between complainant and accused including money transaction till the day. Whatever the allegations made in the complaint is absolutely false. Hence, she prayed for dismiss the Judgment 11 C.C.No.24456/2017 present case. DW.1 was subjected for cross-examination by the advocate for the complainant.
16. On going through the rival contentions of the parties, it made clear that, based on the questioned cheques at Exs.P1 and P2, the complainant has brought the present case by stating that, for discharge of existence of legally recoverable debt of Rs.5,45,000/- the accused got issued the same, despite they are dishonoured, she got issued legal notice, she not paid the amount covered under the questioned cheques. Therefore, the initial statutory presumption shall be drawn in favour of complainant that, since the accused is liable to pay the existence of legally recoverable debt, she got issued the questioned cheques to the complainant unless and until contrary prove. Throughout the case none of the parties have disputed the compliance of mandatory provisions in order to maintain the present case.
17. No doubt, in this case, the accused attack on the claim of complainant by taken up the probable defence that, the complainant is her childhood friend and both have joined the chit run by her teacher by name Mary Alphonza, in that connection, she took the 2 blank cheques and the said Mary Alphonza abscond and the complainant took those cheques and filed the Judgment 12 C.C.No.24456/2017 present case without her knowledge. Thereby, it made clear that, it is the defence of accused that, she gave both cheques at Exs.P1 and P2 to Mary Alphonza and through her or from her house, the complainant took the same and filled them and filed false case. First of all, the fact made clear that, in her cross- examination clearly admitted, Mary Alphonza is not only her teacher, she also her relative. More particularly, she stated both the questioned cheques were given to Mary Alphonza and she absconded and the said cheques taken by the complainant got misused. In order to show that, the Mary Alphonza run the chit business, the accused got produced the complaint lodged by T.S.Umesh and others as per Exs.D1 to D4. No doubt, those persons were lodged complaints against Mary Alphonza regarding non-payment of chit amount and alleging she abscond. It is not the contention of the accused that, she was subscribed to the said chit, she not produced any document. Whatever the document at Exs.D1 to D4, it does not reveal the factum of complainant and accused were participated in the chit run by Mary Alphonza. If at all, she did any chit transaction and recited them, it is them to initiate necessary action against Mary Alphonza. In order to show that, the complainant and accused, as alleged by the complainant, joined chit with Mary Alphonza, she not produced any document.
Judgment 13 C.C.No.24456/2017 In order to show that, she was participated in the chit, she needs to produce some documents or evidence, at least could have examined any one of the witness, who participated in the chit. During the course of cross of DW.1, she reasserted her defence that:
"ªÉÄÃj D¯Áá£ÁÓ gÀªÀjUÉ aÃn DgÀA©ü¸ÀĪÀ ªÉÆzÀ®Ä ¨ÀszÀævÉUÁV 2 ZÉPÀÌ£ÀÄß PÉÆnÖzÉÝãÉ. DPÉAiÀÄ «gÀÄzÀÞ zÀÆgÀÄ zÁR°¹zÀ §½PÀ £À£Àß ZÉPÀÌ£ÀÄß DPÉ ElÄÖPÉÆArzÁÝgÉAzÀÄ £Á£ÀÄ ¥ÀævÉåÃPÀ zÀÆgÀ£ÀÄß DPÉAiÀÄ «gÀÄzÀÞ ¤Ãr®è. D ¨ÁåAQUÀÆ PÀÆqÀ £Á£ÀÄ zÀÆgÀÄ zÁR°¹®è. ¦AiÀiÁ𢠪ÉÄÃj D¯Áá£ÁÓ §½ aÃnAiÀÄ£ÀÄß ºÁQzÀ §UÉÎ £À£Àß°è zÁR¯É E®è. £Á£ÀÄ aÃnAiÀÄ ¸ÀzÀ¸Àå¼ÁzÀ §UÉÎ aÃnAiÀÄ PÀAvÀ£ÀÄß ¥ÁªÀw¹zÀ §UÉÎ MAzÀÄ §ÄQÌUÉ ªÉÄÃj D¯Áá£ÁÓ ¸À» ªÀiÁr PÉÆlÖ §UÉÎ zÁR¯É EzÉ. £Á£ÀÄ ªÀÄvÀÄÛ ¦AiÀiÁ𢠪ÉÄÃj D¯Áá£ÁÓ §½ AiÀiÁªÀÅzÉà aÃn ºÁQ®è, D PÁgÀtPÉÌ zÀÆgÀ£ÀÄß ¤Ãr®è JAzÀgÉ ¸ÀjAiÀÄ®è. ªÉÄÃj D¯Áá£ÁÓ £À£Àß ¸ÀA§A¢üAiÀiÁzÀÝjAzÀ DPÉAiÀÄ «gÀÄzÀÞ zÁR¯ÁzÀ ¥ÀæPÀgÀtzÀ §UÉÎ £À£ÀUÉ w½¢zÀÄÝ, CªÀÅUÀ¼À zÁR¯ÉAiÀÄ£ÀÄß ºÁdgÀÄ ¥Àr¹zÉÝãÉAzÀgÉ ¸ÀjAiÀÄ®è."
18. On meticulous perusal of the said evidence of DW.1, she re-asserted her affidavit evidence as to handed over the questioned cheques in blank as security to Mary Alphonza. If at all, the said Mary Alphonza recited the accused without paying chit amount and non-returning the blank cheques, which obtained Judgment 14 C.C.No.24456/2017 as security for chit, definitely, to safeguard her interest or protect her interest, she could have lodge necessary complaint against Mary Alphonza, as to avoid misuse of the said citing cheque particulars. Admittedly, as she admitted, she not lodges any complainant against Mary Alphonza. At least she could have filed the complaint to her banker with regard to avoid misuse of cheques. No doubt, the accused is well educated, she not opt for the same also for the reasons better known to her. Very particularly she deposed that, complainant joined chit with Mary Alphonza, she had no document. But she clearly admitted that, accused joined chit with Mary Alphonza and payment of premium to her in connection to chit, she had document, which bares the signature of Mary Alphonza. The said evidence is best piece of evidence, which reveals the chit transaction alleged to be held between accused and Mary Alphonza. But for the reasons better known to her, though she had the document with the signature of Mary Alphonza as to receipt of premium, why she withheld the said piece of material document not been explained. The non- production of material document, the only one inference has to be drawn as suggested by the complainant counsel that, since she not joined the chit run by Mary Alphonza nor handed over questioned cheque to her, she not took paid to initiate legal action Judgment 15 C.C.No.24456/2017 as to misusel of her instrument and avoided to produce the best piece of evidence, it made clear that, there is no substance in the defence of accused. Complainant counsel during her cross- examination has suggested that, in order to avoid repayment of money covered under the questioned cheques she deposed falsely, but she denied the same. Even, she clearly admitted that, she got receipt of legal notice issued by the complainant. If at all, she got received legal notice, there was no impediment to her to cause any reply. If at all, had any defence, but for the reasons better known to her, she avoid the reply, thereby indirectly admitted, since she is liable to pay amount covered under the cheques to the complainant, she not taken pain to cause any reply. It is also one of the circumstances to disbelieve the very contention of the accused.
19. On appraisal of the defence evidence of the accused, though she stated, she gave blank cheques to Mary Alphonza, she never denied her signature found at Exs.P1(a) and P2(a). Whatever the compelling circumstances to the accused to gave singed cheques to Mary Alphonza in connection to the chit is not been satisfactorily demonstrated. If really she joined chit as she alleged, the complaints lodged at Exs.D1 to D4 persons are the material witnesses to prove the defence of accused, but accused Judgment 16 C.C.No.24456/2017 not choosen to examine any one of them to substantiate her defence. Thereby, whatever the opportunity available to the accused by virtue of Section 139 of Negotiable Instruments Act, the initial burden she not discharged and thereby she failed to prove the case of complainant. Thereby, whatever the initial statutory presumption stands in favour of the complainant remains un-rebutted.
20. So far as, the alleged loan transaction is concern, in the complaint itself she clearly narrated that, though accused requested the loan for Rs.6 lakhs, the complainant on 3 occasions during October, 2016, December, 2016 and January, 2016, she got paid sum of Rs.3 lakhs, Rs.2 lakhs and Rs.45,000/- respectively to the accused. In that regard, she more clarified that, she took money from her husband, who did bar and restaurant business, she paid the said money. More particularly she stated, her husband gathered Rs.3 lakhs by way of pledge her golden ornaments and Rs.45,000/- pledging her golden ornaments to Muthoot Finance and Rs.2 lakhs by way of cash paid as loan to the accused. In that line, she also stated that, her husband mobilized the fund by way of pledge her golden ornaments. In order to show that, she adjusted money as such, to show that, sum of Rs.3 lakhs arranged by her husband, she got Judgment 17 C.C.No.24456/2017 produced the bank pass book of him at Ex.P9, which stands in the name of Shyamsundar. The relevant entries account transfer from husband of the complainant for the tune of Rs.3 lakhs were made on 25.10.2016 as per Ex.P9(a). On the very same day by way of cheque Rs.2,99,000/- were withdrawn.
21. The complainant has contended that, on the said day, the said Rs.3 lakhs were given to the accused. The Ex.P9 discloses that, as alleged by the complainant, though she not able to disclose the exact date of payment in the presence of any query suggested by the advocate for the accused, the payment sum of Rs.3 lakhs, she produced Ex.P9, which clearly manifest that, complainant had Rs.3 lakhs as on the said date and the very same money, since accused was her childhood friend in order to help for paid to accused. That apart, Exs.P10 and P11 which pertaining to Muthoot Finance, which clearly discloses the Ex.P11 that, the husband of the complainant got the account by pledging gold as per gold loan ledger at Exs.P10 and P11. From 31.01.2017 and 27.03.2017, who is by pledging gold and borrowed loan. During the course of cross of PW.1, the accused counsel was suggested that, complainant's husband had opened account on 27.03.2017 by relying upon Ex.P10, to the same though PW.1 has admitted the documentary evidence at Ex.P11, Judgment 18 C.C.No.24456/2017 the very gold loan ledger form issued by Muthoot Finance clearly disclosed, on 31.01.2017 itself the husband of the complainant had transaction with the said finance by pledging his gold availed loan. Therefore, the complainant has contended that, by mobilizing the loan of Rs.45,000/- as found in Ex.P10, she paid in the month of January, 2017 is substantiated and the same is not disproved by the accused. Thereafter, with regard to payment of Rs.2 lakhs in the month of December, 2016 is concern, the complainant has not produced any document, but she stated that, by way of cash she paid the said money. When she paid money by way of cash need not expect the documentary evidence. She clearly stated that, her husband run the bar and restaurant business and whenever he paid money to the accused, apart from cash of Rs.2 lakhs, rest of money by pledging golden ornaments as found in Exs.P5 and P9 got paid to the accused. In that line, the PW.1 has withstood for cross-examination. In her cross- examination, she has deposed that, she studied BCA and her husband run Srinivasa Bar and restaurant and had income of Rs.50,000/- per month minimum and it is admittedly, the accused knew to her.
22. The PW.1 in her cross-examination has deposed that:
Judgment 19 C.C.No.24456/2017 "£Á£ÀÄ ¸ÀÄAPÀzÀPÀmÉÖAiÀÄ ¨ÁrUÉ ªÀÄ£ÉAiÀÄ°è ªÁ¸À ªÀiÁqÀÄwÛzÉÝãÉ. DgÉÆæ ¸ÀéAvÀ ªÀÄ£ÉAiÀÄ°è ªÁ¸À ªÀiÁqÀÄwÛzÁÝgÉAzÀgÉ ¸Àj. DgÉÆæ ªÉÄÃ¯É ªÀÄvÀÄÛ PɼÀV£À CAvÀ¹Û£À ªÀÄ£ÉAiÀÄ£ÀÄß ¨ÁrUÉUÉ PÉÆnÖzÁÝgÉ. DgÉÆæAiÀÄ ¸ÀºÉÆÃzÀgÀ ªÁ¸ÀÄÛ¦æAiÀÄ PÀ£ïÖçPÀë£ï£À GzÉÆÃåV JAzÀgÉ £À£ÀUÉ UÉÄÁwÛ®è. DgÉÆæ ¸ÀºÉÆÃzÀj ªÀÄ£ÉAiÀÄ°èzÁÝgÉ. DPÉ ¥Àæw¶ÖvÀ ¸ÀA¸ÉÜAiÀÄ GzÉÆÃåV JAzÀgÉ £À£ÀUÉ UÉÆwÛ®è. DgÉÆæAiÀÄ HgÀÄ vÀ«Ä¼ÀÄ£Ár£À wgÀĪÀ£ÁªÀįÉÊ£À°è ¸ÀĪÀiÁgÀÄ 25 JPÀgÉ D¹Û ºÉÆA¢zÁÝgÉAzÀgÉ £À£ÀUÉ UÀÉÆwÛ®è. C°ègÀĪÀ ¸ÀĪÀiÁgÀÄ ªÀÄ£ÉUÀ¼À£ÀÄß ¨ÁrUÉUÉ PÉÆnÖzÀÄ, ¨ÁrUÉ §gÀÄwÛzÉ JAzÀgÉ £À£ÀUÉ UÉÆwÛ®è. C°ègÀĪÀ D¹Û¬ÄAzÀ ¸ÁPÀµÀÄÖ DzÁAiÀÄ DgÉÆæUÉ EzÉ JAzÀgÉ £À£ÀUÉ UÉÆwÛ®è. C°ègÀĪÀ D¹ÛAiÀÄ ªÀ»ªÁn£ÀÄß DgÉÆæAiÀÄ ¸ÀºÉÆÃzÀgÀ ªÀÄvÀÄÛ vÁ¬Ä £ÉÆÃrPÉƼÀÄîwÛzÁÝgÉ JAzÀgÉ £À£ÀUÉ UÀÉÆwÛ®è."
23. On going through the said testimony of PW.1, it reveal that, complainant resided in rented house and accused admittedly resides in her own house and she let out her ground floor and up stair building on rent. Even, it was suggested that, her brother was doing employment in Vasthu Priya Construction. The suggestion made that, sister of the accused is also working in esteemed institution, but PW.1 has denied, she has does not know. It was also suggested that, accused had her home town at Thiruvannamalai had Rs.25 crores of property and several houses Judgment 20 C.C.No.24456/2017 were let out and also gathered income by way of rentals. Even it was suggested that, accused had sufficient income and her property were look after by her brother and mother, but PW.1 denies. If at all, she had that much of income at various places at Bengaluru and Thiruvannamalai, definitely, she had no impediment to produce any document to rebut the claim of complainant. Mere suggesting to PW.1 by assuming that, she has plenty of properties and had income is not enough, it is the initial burden on the accused to rebut the facts and circumstances, but utterly failed. The PW.1 in her cross-examination stated that, in the year 2016, the accused approached her signature for the loan of Rs.6 lakhs, that too, in the month of October and she stated does not remember the date. In the further cross-examination, she re-asserted her contention of payment of alleged loan of Rs.6 lakhs to the accused, as said by her that:
"DgÉÆæUÉ gÀÆ.5,45,000/- ¸Á® PÉÆnÖzÉÝ. §rØ gÀ»vÀªÁV PÉÆnÖzÉÝ. DgÉÆæUÉ CPÉÆÖçgï, r¸ÉA§gï 2016 gÀAzÀÄ ºÁUÀÆ d£ÀªÀj 2017 gÀAzÀÄ vÀ¯Á gÀÆ.3 ®PÀë, 2 ®PÀë ºÁUÀÆ gÀÆ.45,000/- ªÀ£ÀÄß C£ÀÄPÀæªÀĪÁV DPÉUÉ PÉÆnÖzÉÝ£ÀÄ. ¤RgÀªÁV, AiÀiÁªÀ ¢£ÁAPÀzÀAzÀÄ D ªÉÆvÀÛªÀ£ÀÄß PÉÆnÖzÉÝ£ÀÄ JAzÀÄ £É£À¦®è. D «µÀAiÀÄ ¥ÀæªÀiÁt ¥ÀvÀæzÀ°è ºÉý®è JAzÀgÉ ¸ÀjAiÀÄ®è. DgÉÆæAiÀÄ ªÀÄ£ÉAiÀÄ°è D ºÀtªÀ£ÀÄß PÉÆqÀĪÁUÀ £À£Àß UÀAqÀ PÀÆqÀ Judgment 21 C.C.No.24456/2017 EzÀÝgÀÄ. ªÀÄÆgÀÄ ¨Áj PÀÆqÀ DPÉAiÀÄ ªÀÄ£ÉAiÀįÉèà £Á£ÀÄ ºÀt PÉÆqÀĪÁUÀ £À£Àß UÀAqÀ PÀÆqÀ EzÀÝgÀÄ. DAiÀiÁ ºÀtªÀ£ÀÄß DgÉÆæUÉ PÉÆqÀĪÁUÀ, DPɬÄAzÀ AiÀiÁªÀÅzÉà zÁR¯ÉAiÀÄ£ÀÄß ¥ÀqÉzÀÄPÉÆAr®è. DgÉÆæUÉ AiÀiÁªÀ AiÀiÁªÀ ªÀÄÄR ¨É¯ÉAiÀÄ ºÀtªÀ£ÀÄß PÉÆnÖzÉÝ JAzÀÄ £É£À¦®è. DgÉÆæUÉ ¤ÃrzÀAvÀºÀ ºÀt £À£Àß §½ E¢ÝvÀÄÛ JAzÀÄ vÉÆÃj¸À®Ä zÁR¯ÉAiÀÄ£ÀÄß ºÁdgÀÄ ªÀiÁrzÉÝãÉ. £À£Àß a£ÁߨÀsgÀtªÀ£ÀÄß CqÀªÀiÁ£ÀPÉÌ M¼À¥Àr¹ DgÉÆæUÉ ¸Á® ¤ÃrzÉÝ£ÀÄ. CzÀPÉÌ ¸ÀA§AzÀs¥ÀlÖAvÉ zÁR¯É ºÁdgÀÄ ¥Àr¹®è JAzÀgÉ ¸Àj. DgÉÆæUÉ ºÀt ¤ÃrzÀ ¢£ÀzÀAzÀÄ £À£Àß §½ CµÀÄÖ ªÉÆvÀÛ EgÀ°®è JAzÀgÉ ¸Àj. ¸ÁQëAiÀÄÄ ¸ÉÖÃmï ¨ÁåAPï D¥sï ªÉÄʸÀÆgÀÄ, vÀÄgÀĪÉÃPÉgÉ ±ÁSÉAiÀÄ°è a£ÁߨÀsgÀtUÀ¼À£ÀÄß MvÉÛ ElÄÖ DPÉUÉ ºÀt PÉÆnÖzÉÝ£ÀÄ JAzÀÄ ºÉüÀÄvÁÛgÉ. JµÀÄÖ vÀÆPÀzÀ a£ÀߪÀ£ÀÄß MvÉÛ EmÉÖ JAzÀÄ £É£À¦®è. AiÀiÁªÀ AiÀiÁªÀ a£ÀߪÀ£ÀÄß D jÃw MvÀÉÛ EmÉÖ JAzÀÄ «ªÀgÀ FUÀ £É£À¦®è. CzÀPÉÌ JµÀÄÖ ¥Àæw±ÀvÀ §rØ PÀlÄÖwÛzÉÝ JAzÀÄ £É£À¦®è. ªÀÄÆgÀÄ ®PÀëªÀ£ÀÄß a£ÁߨÀsgÀtªÀ£ÀÄß MvÉÛ ElÄÖ ªÀÄvÀÄÛ 2 ®PÀëªÀ£ÀÄß £ÀUÀzÁV DgÉÆæUÉ PÉÆnÖzÉÝ£ÀÄ. gÀÆ.2 ®PÀë £ÀUÀzÀÄ EzÀÝ §UÉÎ zÁR¯É ºÁdgÀÄ ¥Àr¹®è. D §UÉÎ £À£Àß°è zÁR¯É E®è PÁgÀt CzÀÄ £À£Àß G½vÁAiÀÄzÀ ºÀt. JgÀqÀ£Éà ¨Áj gÀÆ.45,000/- ªÀ£ÀÄß ªÀÄÄvÀÆÛmï ¥sÉÊ£Á£ïì £À°è ¸ÀtÚ ¸ÀtÚ a£ÁߨÀsgÀtªÀ£ÀÄß MvÉÛ ElÄÖ D ºÀtªÀ£ÀÄß DgÉÆæUÉ PÉÆnÖzÉÝ£ÀÄ. CzÀPÉÌ 2 ¥Àæw±ÀvÀ ªÀiÁ¹PÀ §rØ EgÀ§ºÀÄzÀÄ. D §UÉÎ zÁR¯É PÉÆnÖ®è. £Á£ÀÄ AiÀiÁªÀÅzÉà D¨ÀsgÀt MvÉÛ EnÖ®è, DgÉÆæUÉ ¸Á® ¤Ãr®è JAzÀgÉ ¸ÀjAiÀÄ®è. ¢£ÁAPÀ 08.11.2016 gÀAzÀÄ £ÉÆÃlÄ Judgment 22 C.C.No.24456/2017 CªÀiÁ£ÀåPÀgÀtªÁVvÀÄÛ JAzÀgÉ ¸Àj. DUÀ ºÀ¼ÉAiÀÄ £ÉÆÃl£ÀÄß ¨ÁåAQUÉ PÉÆlÄÖ ºÉƸÀ £ÉÆÃnUÉ PÁAiÀÄÄwÛzÀÝgÀÄ JAzÀgÉ EgÀ§ºÀÄzÀÄ. ¸ÁQëAiÀÄÄ ¸ÀévÀB ªÀÄÄAzÀĪÀgÉzÀ ºÀ¼ÉAiÀÄ £ÉÆÃl£ÀÄß §zÀ¯Á¬Ä¹ ºÉƸÀ £ÉÆÃl£ÀÄß ¥ÀqÉzÀÄPÉÆArzÀÉÝ£ÀÄ. DgÉÆæUÉ ºÀt ¤ÃqÀ®Ä ¨ÁåAQ£À°è £ÉÆÃlÄ CªÀiÁ£ÀåPÀgÀt¢AzÀ £À£ÀUÉ ¹UÀĪÀ ¸ÁzÀsåvÉ E®è JAzÀgÉ ¸ÀjAiÀÄ®è. DgÉÆæUÉ AiÀiÁªÀÅzÉà ¸Á® £Á£ÀÄ ¤Ãr®è JAzÀgÉ ¸ÀjAiÀÄ®è."
24. The PW.1 in her cross-examination has reasserted that, in all she gave Rs.5,45,000/- loan to the accused in the installments in the month of October, December-2016 and January, 2017. More particularly she stated that, in those months, she gave Rs.3 lakhs, Rs.2 lakhs and Rs.45,000/- respectively to the accused, but she stated, she does not remember the date. In order to show that, she mobilized that much amount, she produced documents and she withstood her contention in her cross-examination. The cross-examination is not a memory test and no strict rule to explain the date, as it was the transaction of the year 2016, when alleged to be paid the amount on 3 occasions, being ordinary woman being cannot accepted to disclose the date each. The PW.1 has asserted that, she has not discloses the particulars of date in her affidavit. The PW.1 specifically stated that, whenever she paid money to the accused on 3 occasions her husband was Judgment 23 C.C.No.24456/2017 accompanied her and stated that, she whenever paid the money as such, but her not obtained any document. Even, there is no suggestion made to PW.1 that, no money as alleged paid and her husband was not present at that time. Even no suggestion is made regarding of impediment as to the examination or non- examination of the husband of the complainant.
25. The PW.1 reasserted that, to show that, she had requisite fund to pay money to the accused, she reasserted that, she had produced the documents pertaining to pledge of golden ornaments by her husband. Even in her cross-examination, she clearly admitted that, with her, she had no requisite fund, but by pledge gold borrowed the jewellery loan from State Bank of Mysore, Tavarekere Branch. It is expected to that, no person can explain, what quantity of gold were pledged in the witness box. She clearly stated that, by pledge golden ornaments, she gave Rs.2 lakhs to the accused and to show that, she had cash of Rs.2 lakhs, admittedly not produced any document. More particularly, she stated that, it was her savings money. With regard to Rs.45,000/- is concern, she clearly stated that, by pledge gold borrowed loan from Muthoot Finance on monthly interest at 2% p.m. The advocate for accused simply suggested, no such gold was pledged.
Judgment 24 C.C.No.24456/2017
26. In the said cross of PW.1, it also reveal that, on 08.11.2016 Rs.500/- and Rs.1000/- notes were demonetarized and thereafter the peoples are rushed to bank for deposit old currency and collect new currency. The PW.1 has stated that, she had converted old currency into new currency and got obtained money. There was suggestion made to PW.1 that, on account of demonetarization, there was no chance to complainant collect money and no such loan was paid to the accused, but she denied. On going through the above testimony of PW.1, it made clear that, before demonetarization dated:08.11.2016, in the month of October she claimed to be paid sum of Rs.3 lakhs to the accused, and thereafter 2 months in the money of December, 2016 and Rs.45,000/- in the month of January, 2017. Therefore, in order to show that, she had no such money against the documentary evidence at Exs.P9 to P11, there is no acceptable suggestion is made to her. Though further cross-examined the PW.1, as to Ex.P9, she denied the suggestion made by the advocate for accused that, in respect of money obtained by husband of the complainant as per Ex.P9 there is no connection to the accused. Though, PW.1 has subjected for cross-examination, nothing worthwhile as suggested to DW.1 or extracted from her mouth to disbelieve the version raised in the complaint. Though, she was Judgment 25 C.C.No.24456/2017 subjected for cross-examination, if at all, complainant and accused has alleged subscribed of chit with Mary Alphonza and accused gave 2 cheques as security definitely, the said factum could have been suggested to PW.1, but no such specification is suggested, in order to understand their participation in the chit and gave the questioned cheques as security. If at all, any such chit transaction were held definitely, as admitted by the accused, she could have produce document as to Mary Alphonza has run the chit and got received questioned cheques for security. First of all, accused failed herself to prove that, she subscribed chit with Mary Alphonza, who was the then teacher cum relative of the accused. In that connection, she not choosen to examined any independent witness to rebut the statutory presumption as well as case of the complainant. The PW.1 has successfully withstood her contention and denied, mere suggestion forced by the advocate for accused. She by produced the documentary as well as oral evidence withstood her contention and established that, the accused for discharge of existence of legally recoverable debt and also to discharge portion of money got issued questioned cheques at Ex.P1 for Rs.95,000/- and requested to not to present it and later for payment of the entire remaining amount got issued cheque at Ex.P2 for Rs.4,50,000/-. Those cheques given by the accused to Judgment 26 C.C.No.24456/2017 the complainant by virtue of memos at Exs.P3 and P4 got dishonoured. Despite, she gave legal notice at Ex.P5, though it was served on accused for the reasons better known to her, not caused reply. If at all, her version to be true, definitely, there was no impediment to the accused to cause any reply. The accused has failed to discharge the initial burden by rebut the case of complainant. The complainant coupled with support of statutory presumption got proved her case and guilt of the accused. Therefore, keeping in the mind of the object of introduction of Negotiable Instruments Act, it appears this court, it is fit case to convict the accused coupled with the amount covered under the cheques at Exs.P1 and P2 at Rs.5,45,000/-. The same offence has been continued till this day, therefore, the complainant has successfully established the guilt of the accused, regarding commission of offence punishable under Section 138 of Negotiable Instruments Act. The complainant has complied the mandatory requirement and established her case successfully. Despite that, the accused has not set right the wrong committed by them as per Section 138 of Negotiable Instruments Act.
27. As discussed above by way of furnishing clear, convincing, corroborative, oral as well as documentary evidence has proved that, the accused has committed the offence punishable under Judgment 27 C.C.No.24456/2017 Section 138 of Negotiable Instruments Act. Therefore, looking into the transaction, it is the considered opinion of this court that, the accused has taken bald, inconsistence defence without any base and failed to prove her improbable defence. Contrary, the PW.1 has established her case beyond the reasonable doubt through oral as well as documentary evidence. Thereby, unnecessarily cause the complainant to approach this court of law, therefore, the accused is liable to be punished by way of imposing fine sentence. Therefore, the accused is to be convicted by imposing the cheques amount. Out of the said fine amount, sum of Rs.5,40,000/- shall be payable to the complainant as compensation and remaining amount of Rs.5,000/- shall be payable to the state as fine amount. Accordingly, if the accused fails to pay the whole fine amount, the accused shall undergo simple imprisonment for 12 months. Thereby, one more opportunity has provided to the accused to comply the order. Otherwise, the very purpose of filing complaint will be defeated. As discussed above, the complainant has proved her case beyond reasonable doubt. In the result, the accused shall sentence to pay the fine amount as detailed in the order portion. Accordingly, Point Nos.1 and 2 are answered in the Affirmative.
Judgment 28 C.C.No.24456/2017
28. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
ORDER Accused found guilty for the offence punishable under Section 138 of Negotiable Instruments Act.
Acting under Section 255(2) of Cr.P.C.
the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay fine of Rs.5,45,000/-.
Out of the said fine amount, sum of Rs.5,40,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount of Rs.5,000/- shall be payable to the state as fine amount.
In default of pay the fine amount, the accused shall under go simple imprisonment for 12 (Twelve) Months.
The bail bond and cash security/surety bond of the accused stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
Judgment 29 C.C.No.24456/2017 (Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 7th day of July - 2020) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Triveni List of Exhibits marked on behalf of Complainant:
Exs.P1 & P2 : Original Cheques Exs.P1(a) & P2(a) : Signatures of accused Exs.P3 & P4 : Bank endorsements Ex.P5 : Office copy of legal notice Ex.P6 : Postal receipt Ex.P7 : Professional Courier receipt Ex.P8 : Postal Acknowledgment Card Ex.P9 : Bank pass book Ex.P9(a) : Relevant entries at Ex.P9 Exs.P10 & P11 : Gold loan ledger extracts
List of Witnesses examined on behalf of the defence:
DW.1 : Flavina.F List of Exhibits marked on behalf of defence:
Exs.D1 to D4 : CC of FIR's
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 30 C.C.No.24456/2017
07.07.2020.
Comp -
Accd -
For Judgment
Case called out.
Complainant and accused are
absent. No representation from both side
advocates, despite, web-host the case
proceedings and intimate the date of
pronouncement of judgment. Hence, as per
Section 353(6) of Cr.P.C. the following
judgment is pronounced in the open court
vide separate order.
*****
ORDER
Accused found guilty for the offence
punishable under Section 138 of Negotiable Instruments Act.
Acting under Section 255(2) of Cr.P.C.
the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay fine of Rs.5,45,000/-.
Out of the said fine amount, sum of Rs.5,40,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount of Rs.5,000/- shall be payable to the state as fine amount.
Judgment 31 C.C.No.24456/2017 In default of pay the fine amount, the accused shall under go simple imprisonment for 12 (Twelve) Months.
The bail bond and cash security/surety bond of the accused stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 32 C.C.No.24456/2017
20.06.2020.
Comp -
Accd -
For Judgment
Case called out.
Complainant and accused are
absent. Both side counsels are also
absent. No representation from both
side. In the absence of both side, in
order bring the notice of pronouncement
of judgment, it require to web-host the
proceedings of the present case.
Accordingly, computer branch is
hereby directed to web-host the status
of the present case by mentioning the
next hearing date. Accordingly, for
pronouncement of judgment adjourned
to:06.07.2020.
XXIII ACMM, Bengaluru.