Bangalore District Court
Sri. G.K.Srinivasan vs Smt. Manjula M on 26 May, 2020
1 C.C.No.27364/2017 J
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated:- This the 26th day of May 2020
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.27364/2017
Complainant : Sri. G.K.Srinivasan,
S/o. Late Krishnama Naidu,
Aged about 79 years,
Residing at No.358,
7th Cross, AGS layout,
Arehalli, Uttarahalli Hobli,
Bengaluru -560 061.
(By Sri. M.Sudhakar., Adv.,)
- Vs -
Accused : Smt. Manjula M,
W/o. K.Kumar,
Aged about 35 years,
Residing at No.24,
10th A Cross,
Ittamadu Main Road,
Balaji Nagar,
Bengaluru -560 085.
(By Sri. R.M.D.R. Chavan., Adv.,)
Case instituted : 29.8.2017
2 C.C.No.27364/2017 J
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is convicted
Date of order : 26.5.2020.
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, he and Accused are close associated and acquainted with each other, the Accused was introduced to him by his daughter-in-law Smt. G.C.Nandini who is a friend of Accused since several years, accordingly the Accused approached him in the month of May 1st week 2016 and requested him to lend a sum of Rs.3 Lakhs to meet her urgent financial requirement i.e. to establish furniture business at Girinagar, Bengaluru, as per the request of the Accused and demand he had given a sum of Rs.3 Lakhs by way of cash as hand loan to the Accused and in turn the Accused agreed to repay the 3 C.C.No.27364/2017 J amount within short period and at the time of receiving money towards repayment the Accused issued a cheque bearing No. 385178 dated: 9.7.2017 for sum of Rs.3 Lakhs drawn on Central Bank of India, Kathriguppe Branch, Bengaluru. It is further case of the complainant that, as per the assurance and promise of the Accused, he presented the cheque through his banker, i.e M/s. State Bank of India, Ramanjaneya Branch, Bengaluru, but the said cheque returned with endorsement stating that "Funds insufficient' on 9.7.2017, after dishonour of the cheque he approached the Accused and intimated the facts but the Accused deliberately avoiding to pay the cheque amount, hence he got issued legal notice to the Accused on 16.7.2016 through RPAD calling upon the Accused to pay the cheque amount and the said notice was duly served on the Accused on 18.7.2017, inspite of service of the said notice, the Accused neither replied to the notice nor paid the cheque amount. Hence he has filed this present complainant against the Accused for the offence punishable U/s.138 of Negotiable Instruments Act.
4 C.C.No.27364/2017 J3. Before issuing process against the accused, the Complainant has filed his affidavit-in-lieu of his sworn statement, in which, he has reiterated the averments of the complaint. In support of his oral evidence, P.W.1 has relied upon the documentary evidence as per Ex.C.1 to C.7 i.e, Original Cheque, dated: 9.7.2017 is as per Ex.C.1, the signature on the said cheque identified by P.W.1 as that of the accused as per Ex.C.1(a), the Bank Challan as per Ex.C.2, Bank Memo as per Ex.C.3, the office copy of Legal Notice as per Ex.C.4, postal receipt as per Ex.C.5, postal acknowledgement as per Ex.C.6, courier receipt as per Ex.C.7.
4. Prima-facie case has been made out against the accused and summons was issued against the accused in turn she has appeared before the court and got enlarged on bail and the substance of the accusation has been read over to her, to which she pleaded not guilty and claims to be tried.
5. As per the direction of the Hon'ble Apex Court in the decision of the Indian Bank Association Vs., Union of India, reported in 2014 (5) SCC 590, after recording the plea of the Accused, 5 C.C.No.27364/2017 J as she intended to set out her defence, the case came to be posted for the Cross-examination of complainant.
6. 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 has examined as DW.1 and one original cheque bearing No.625712 dated: 3.11.2018 got marked as per Ex.D.1 and closed her side.
7. Heard both sides and perused the decisions relied upon by the both learned counsel for the Accused and complainant and materials on record. The learned counsel for the Accused relied upon the decisions i.e. 1) Criminal Appeal No. 636/2019 (Supreme Court of India) in case of Basalingappa Vs.Mudibasappa; 2) Crl. Rev. P. No.63/2015 in case of Sanjay Verma Vs. Gopal Halwai (High court of Delhi).
8. On the basis of complaint, evidence of complainant and documents the following points 6 C.C.No.27364/2017 J that are arise for consideration are:-
1. Whether the complainant proves that the accused has issued cheque bearing No. 385178 dated:
9.7.2017 for Rs. 3 Lakhs drawn on Central Bank of India, Kathriguppe Branch, Bengaluru, to discharge legally recoverable debt to the complainant and when the complainant has presented cheques for encashment through his banker but the said cheques have been dishonoured for the reasons "Funds Insufficient" on 9.7.2017 and the complainant issued legal notice to the accused on 16.7.2017 and inspite of it the accused has not paid the cheques amount within prescribed period there by the accused has committed an offence U/s.138 of the Negotiable instruments Act?
2. What Order?
9. The above points are answered as under:
Point No.1: In the Affirmative Point No.2: As per final order for the following:
REASONS
10. Point No.1 : Before appreciation of the 7 C.C.No.27364/2017 J 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 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 pre-supposes conditions for prosecution of an offence which are as under:
1. Existence of legally enforceable debt or liability and issuance of cheque in discharge of said debt or liability;
2. Cheque shall be presented for payment within specified time i.e., from the date of issue before expiry of its validity.
3. The holder shall issue a notice demanding 8 C.C.No.27364/2017 J payment in writing to the drawer within one month from the date of receipt of information of the bounced cheque and
4. 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 conditions are satisfied by holder in due course gets cause action to launch prosecution against the drawer in respect of 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.
11. It is also one of the essential ingredient 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 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 9 C.C.No.27364/2017 J presumptions are mandatory presumptions that are required to be raised in cases of negotiable instrument, but the said presumptions are not conclusive and are 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.
12. In the present case the complainant got examined as PW.1 by filing his affidavit evidence wherein the complainant has reiterated the entire averments of the complaint, the complainant/PW.1 in his evidence testified that, Accused was introduced to him by his daughter-in-law Smt.G.C. Nandini who is a friend of Accused, accordingly the Accused approached him in the month of May 1st week 2016 and requested to lent a loan of Rs.3 Lakhs to meet her urgent family financial requirements i.e, to establish furniture business at Girinagar, hence he had given sum of Rs.3 Lakhs by way of cash as a hand loan to the Accused and in turn the Accused agreed to repay the said amount within short period and issued a cheque in question for sum of Rs.3 Lakhs towards repayment of the said 10 C.C.No.27364/2017 J loan amount. The complainant /PW.1 further testified that, as per the promise of the Accused he presented the cheque in question through his banker i.e. State Bank of India, Ramanjaneya branch, Bengaluru but the said cheque was dishonoured with endorsement of "Funds insufficient" on 9.7.2017 and thereafter he was intimated the said fact to the Accused but the Accused deliberately avoided to pay the cheque amount, therefore on 16.7.2016 notice was served on the Accused on 18.7.2017 inspite of it, neither paid the cheque amount nor given reply to the notice.
13. In support of the oral evidence of the complainant, he produced and marked the documents as per Ex.C.1 to C.7 i.e, Original Cheque dated: 9.7.2017, is as per Ex.C.1, the signature on the said cheque identified by P.W.1 as that of the accused as per Ex.C.1(a) the Bank Challan as per Ex.C.2, Bank Memo as per Ex.C.3, the office copy of Legal Notice as per Ex.C.4, postal receipt as per Ex.C.5, postal acknowledgement as per Ex.C.6, courier receipt as per Ex.C.7.
11 C.C.No.27364/2017 J14. In the present case, there is no dispute between the complainant and Accused with regard to their acquaintance. It is also not in dispute that, the cheque in question i.e. Ex.C.1 to belongs to the account of the accused and also not disputed signature of the Accused which is appearing at Ex.C.1(a) is that of the Accused. It is also not in dispute by the accused that, the cheque in question presented for encashment and dishonoured for the reason of "Funds Insufficient" on 9.7.2017, since as matter on record, proved by return memo dated:
11.7.2017 i.e. Ex.C.3 issued by the concerned bank, therefore it is a matter on record and has been proved that, the cheque in question was presented within its validity period and dishonoured as per the bank endorsement issued by the banker of accused.
It is also not in dispute that, after dishonour of the cheque in dispute and receipt of bank memo within 30 days from the date of receipt of bank memo, a legal notice was caused as per Ex.C.4 to the Accused calling upon him to pay amount covered under the dishonoured cheque.
15. So far as in relation to the service of notice 12 C.C.No.27364/2017 J i.e. Ex.C.4, the Accused during the course of cross- examination of the complainant has disputed about the service of notice on her by denying the residential address shown by the complainant in the legal notice and also on the RPAD cover and postal acknowledgement and also contended that, complainant has not produced the documents to show that, Accused was resided in the address shown by the complainant in the legal notice and postal receipt and acknowledgement and RPAD cover. But the Accused herself in her cross- examination at page No.2 in para No.1 clearly admitted that, the signature found at Ex.C.6 postal acknowledgement is that of her signature , hence it goes to show that, the legal notice i.e Ex.C.4 was issued by the complainant through RPAD and same was served on the Accused which is evidenced by postal acknowledgement i.e Ex.C.6 as admitted by the Accused that, the signature found at on Ex.C.6 is that of her signature, therefore when the Accused herself admitted her signature on Ex.C.6 acknowledgement makes it clear that, she has admitted the receipt of legal notice issued by the complainant. In addition to that, the Accused though 13 C.C.No.27364/2017 J he has cross examined in length in respect of service of legal notice but during entire cross-examination no where disputed the address mentioned by the complainant in the legal notice postal acknowledgement and RPAD cover is not of her address but on the contrary the Accused compelled the complainant to produce the document to show that, as on the date of issuance of the notice, the Accused was residing in the address shown by the complainant in legal notice, but when the Accused herself admitted that, signature found at Ex.C.6 postal acknowledgement is of her signature, then the burden of proving shifts upon the Accused i.e. Accused has to prove that, the legal notice caused by the complainant was not served upon her and as on the date of issuance of the legal notice and also service of the notice she was not residing in the address shown by the complainant in Ex.C.4 i.e. legal notice. Though the Accused in her defence evidence stated that, she was not living in the address mentioned in the legal notice i.e Ex.P.4 and was residing along with her husband at No.401, 10th Main Road, Bhuvaneshwari Nagar, Kathriguppe, Banashankari 3rd Stage, Bengaluru - 560 085 and 14 C.C.No.27364/2017 J has produced Rental agreement of her house, but no such rental agreement document is produced by the Accused to prove her defence that, as on the date of issuance of the legal notice or receipt of the notice, the Accused was residing in the address as stated by her in her defence evidence, in such circumstances in view of the admission of the Accused in respect of service of the notice it can be held that, the complainant has successfully proved that, he has issued legal notice i.e ExC.4 to the correct address of the Accused and the said notice was served upon the Accused as the Accused herself admitted that, the signature found at Ex.C.6 is of her signature.
16. It is the specific defence of the Accused that, during the course of cross-examination of the complainant and in his evidence that, he has denied the claim made by the complainant and also issuance of the cheque towards discharge of the liability in question. It is also the specific defence of the Accused that, complainant's son by name Mr.Thrivikrama Rao G.S. borrowed a sum of Rs.4 Lakhs from her and he issued a cheque bearing No. 625712 dated: 3.11.2018 as such, there is no 15 C.C.No.27364/2017 J necessity for her to take loan from the complainant and complainant has no source of income. Hence on this back ground the oral and documentary evidence of the complainant and Accused has to be examined as to whether the Accused has rebutted presumption available to the complainant.
. 17. It is relevant here to mention that, the learned counsel for the defence has cross-examined the complainant in length but nothing has been elicited to discredit or discard his evidence, instead of eliciting anything materials from the complainant the Accused rather concentrated his defence on production of document in respect of source of income and also complainant has not produced the document to show that, he has lent loan amount to the Accused, but the suggestions made to the complainant in respect of the above said defence have been categorically denied by the complainant. The complainant/PW.1 specifically stated that, earlier he was working at HAL institution as Master Technician and got retired on Medical ground in the year 1991. The complainant/PW.1 has also stated that, he know the Accused since 10 to 12 years as 16 C.C.No.27364/2017 J her grand daughter/daughter-in-law and Accused are close friends and the Accused was introduced through his grand daughter/daughter-in-law and the Accused used to visit his house and his grant daughter used to visit the house of the Accused. The complainant/PW.1 further stated that, he had given sum of Rs.3 Lakhs as a hand loan without charging interest for a period of 3 months and at the time of lending of the loan amount the Accused was residing at Bhuvaneshwarinagar, in the house of one Ramesh Babu. It is true that, the Accused has elicited certain inconsistent statements from the complainant during the course of cross-examination i.e. complainant has admitted that, there was a transaction between the Accused, her son and her daughter-in-law and he do not know the place of furniture shop of the husband of the Accused and in the complaint he has not mentioned on which date and before whom he has lent the loan amount to Accused and there was no hindrance for him to lent the loan amount by way of cheque to the Accused, but the said inconsistent statements cannot be taken into consideration to disbelieve or discredit the entire evidence of the complainant as the Accused 17 C.C.No.27364/2017 J herself has admitted issuance of cheque, signature of cheque belongs to her and the Accused has not elicited anything from the complainant to prove the fact that, how and in what manner the cheque in question came in possession of the complainant, except bare denial nothing has been elicited in the cross-examination of PW.1 instead of that, the Accused tried to create doubts with regard to transaction in question, but unless and until the Accused proved her defence, the doubts or in consistent statement elicited during the cross- examination cannot be acceptable one.
18. It is relevant here to mention that, it is true that the complainant in his cross-examination admitted that, he has not produced the document to show that, he has lent loan amount to the Accused and it is also true that, complainant has not produced any document to show his source of income to lend the loan amount to the Accused, but as it is already held in the above that, the complainant proved that the cheque in question i.e Ex.C.1 belongs to the Accused and signature found at Ex.C.1(a) is that of the signature of the Accused 18 C.C.No.27364/2017 J and also proved that, the cheque in question was presented within its validity period and the same was dishonoured for the reason of "Funds Insufficient" as per Ex.C.3 and thereafter the legal notice caused by him through RPAD to the Accused was served on him, in such circumstances, it can be held that, the complainant has discharged his initial burden by complying the mandatory requirements as required U/s.138 of N.I. Act and initially the presumptions are available in favour of the complainant U/s.118a and 139 of the N.I. Act. Consequently it is for the Accused to rebut the said presumptions available in favour of the complainant to show that, the cheque in question was not issued either to the complainant or towards discharge of any legally recoverable debt by producing cogent and convincible evidence but not mere suggestions or even by plausible explanation. In such circumstances, when the presumptions U/s.118 and 139 of N.I.Act are available to the complainant, even the said presumption can be drawn to the extent of existence of legally recoverable debt or liability against the Accused, unless and until the said presumptions are rebutted by the Accused even the 19 C.C.No.27364/2017 J documents are not produced by the complainant with regard to loan transaction in question. 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 adequate proof of existence of debt or liability. In another decision of Hon'ble Apex Court of India i.e. Hon'ble 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 -
20 C.C.No.27364/2017 JGenerally. 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 NO. 508 OF 2018 DT 15-03-2018 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 21 C.C.No.27364/2017 J 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 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. 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 22 C.C.No.27364/2017 J 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 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 23 C.C.No.27364/2017 J 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 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 cross-
examination, 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".
19. Therefore on careful reading of the principles of law laid down by the Hon'ble Apex 24 C.C.No.27364/2017 J 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 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, a presumptions U/s.118a and 139 of N.I.Act indeed does extend to the existence of legally recoverable debt and when such presumption is drawn, the facts relating to the want of documentary evidence in the form of receipts or accounts or want of evidence regarding source of funds were not of relevant 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 cheque in question in his favour and the Accused has admitted the cheque belongs to him and signature appearing on the cheque is that of her signature and legal notice issued by complainant was served on the Accused, in such circumstances, 25 C.C.No.27364/2017 J presumptions have to be drawn towards existence of legally enforceable debt as per Sec.139 of N.I.Act.
20. Therefore, for the above said reasons the arguments canvassed by the learned counsel for the defence that, the complainant has not produced the documents to show that, he was having source of income or funds to lend the loan amount to the Accused as on the date of lending of the loan amount and has not collected the documents for having advancing the loan amount of Rs.3 Lakhs to the Accused at the time of alleged lending of loan amount cannot be acceptable one. The arguments canvassed by the learned defence counsel taken into consideration that, according to the learned counsel for defence, the complainant has to prove his claim by producing his evidence as if it is required for proving his debt before the Civil Court, 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 decisions, therefore in view of the principles of law laid down in the above referred decisions it is presumed that, cheque in question was drawn for consideration as the Accused has 26 C.C.No.27364/2017 J admitted the cheque in question belongs to him and signature found on the cheque in question is also that of his signature. The decisions relied upon by the learned counsel for the Accused are not applicable to the facts of this case.
21. In order to rebut the presumption available U/s.118 and 139 of N.I. Act and to prove the defence of the Accused, the Accused herself examined as DW.1 in her evidence the Accused denied the case of the complainant and also issuance of cheque to the complainant in respect of transaction in question. The Accused /DW.1 further deposed that, the complainant's son by name Thrivikrama Rao borrowed a sum of Rs.4 Lakhs from her and issued cheque bearing No. 625712 dated:
3.11.2018 to her as such, there is no need or necessity her to take loan from the complainant. The Accused in support of her oral evidence has produced the alleged original cheque issued by the son of the complainant i.e. marked as Ex.D.1. So far as concerned to the defence evidence, except denial of the issuance of cheque in favour of the complainant, nothing has been placed before the 27 C.C.No.27364/2017 J court to disprove or rebut the presumption available U/s.118 and 139 of N.I. Act infavour of the complainant. Except the Ex.D.1 cheque nothing has been produced by the Accused to prove that, the complainant's son borrowed a loan of Rs.4 Lakhs from her, if really the complainant's son borrowed loan from her she would have received the loan amount from the complainant's son by presenting the cheque to the bank if the complainant's son issued the cheque towards discharge of loan borrowed from her but no such efforts have been made by the Accused, therefore only on the basis of Ex.D.1 cheque the defence of the Accused cannot be accepted that, as complainant's son borrowed loan from her, therefore the question of taking loan from the complainant by her does not arise at all and complainant has no capacity to lend amount in question. On careful perusal of the defence evidence it is nowhere stated that, how and when and in which manner the cheque in question entered into the hands of complainant, the heavy burden is upon the Accused to prove the said fact but except denial of issuance of cheque nothing has been stated by the Accused about the possession of the 28 C.C.No.27364/2017 J cheque in question with the complainant. Therefore the Accused has miserably failed to rebut the presumption by producing cogent and convincible evidence and documents and the defence of the Accused appears to be mere denial in nature.
22. It is also important to note here that, the Accused during the course of cross-examination of the complainant has taken specific defence with regard to issuance of the cheque by contending that, there was a transaction between the Accused and complainant's son and daughter-in-law and in relation to the said transaction a cheque in question was issued by the Accused in favour of the complainant's son and daughter-in-law and the said cheque is misused by the complainant by filing this case. It is also admitted by the Accused during the course of her cross-examination that, the cheque in question i.e. Ex.C.1 was issued to the daughter-in- law of the complainant in respect of Modi Care business as she and daughter-in-law of the complainant were working in Modi Care business, hence the above said two inconsistent and contrary defences makes it clear that, the Accused is not 29 C.C.No.27364/2017 J specific as to whether the cheque in question was issued to the complainant's son and daughter in law in respect of their transaction or whether the cheque in question was issued to only daughter-in-law of the complainant in respect of Modi Care business, therefore the inconsistent defence of the Accused makes it clear that, only in order to evade repayment of the cheque amount, the Accused trying to take different types of defences that too in the absence of cogent and convincible evidence , hence the defence of the Accused cannot be acceptable one. It is also relevant here to mention that, for sake of discussion, if really the cheque in question has not been issued to the complainant towards discharge of the loan in question and it was issued to the complainant's son or daughter-in-law in respect of Modi Care business or in any other transaction as contended the Accused in her defence and the said cheque is misused by the complainant by filing this complaint. In order to prove the said defence the Accused could have produced the documents to show that, she has made an effort to get return of her cheque i.e Ex.C.1 from the complainant, on the contrary the Accused in her cross-examination admitted that, she has not 30 C.C.No.27364/2017 J filed any complaint against the complainant's son, daughter-in-law and also complainant before the police about alleged misuse of cheque in question, in such circumstances it can be held that, if really the Accused has issued cheque in question to the complainant' son or daughter-in-law in respect of Modi Care business and same is misused by the complainant, the Accused definitely she would have taken or initiate action against the complainant either by lodging the complaint before the police, or court or atleast by issuing reply to the complainant for return of his alleged cheque handed over to complainant's son or daughter-in-law towards Modi Care business as alleged by her or by issuing stop payment instructions to her banker, but no such efforts have been made by the Accused even after notice of the dishonour of her cheque and receipt of legal notice issued by complainant and even after her appearance in this case also, therefore mere denial of the Accused is not sufficient to hold that, she has rebutted the presumptions available to the complainant U/s.118 and 139 of the N.I. Act. It is also relevant here to mention that, the conduct of the Accused in not taking the action against the 31 C.C.No.27364/2017 J complainant for alleged misuse of cheque in question by the complainant may leads to draw an adverse inference against her that, the Accused has not initiated any action against the complainant since the cheque in question has been issued by the Accused to the complainant towards discharge of the liability in question but not for any other purpose. In this regard it is relevant here to refer the decision of 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 -
32 C.C.No.27364/2017 JComplainant proving existence of legally enforceable debt and issuance of cheques towards discharge of such debt - Conviction, Proper". Hence in view of the principles of law laid down by the Hon'ble Apex Court are aptly applicable to the case on hand since in the present case also the accused has not made any efforts to get return of cheque alleged to be given to the complainant's son and daughter-in-law towards alleged Modi Care business, under such circumstances, the said unnatural conduct of the accused in non taking of action, an adverse inference can be drawn against the accused that, the cheque in question issued by the accused towards discharge of the liability and presumption U/s.139 of N.I.Act would operate against her, as she has admitted the signature and cheque in question is belongs to her.
23. It is also important to note here that, the Accused has not denied or disputed that the cheque in question as well as the signature therein do belong to her and though she has taken the specific defence that, she had given cheque to the complainant's son and daughter-in-law towards 33 C.C.No.27364/2017 J Modicare business, but as it is already stated in the above that, the Accused has not proved the said defence by producing cogent and convincible evidence, in such circumstances it can be held that, the Accused has failed to explain and prove how the cheque in question has came 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 have miserably failed to rebut the presumption available in favour of the complainant by producing cogent and convincible evidence.
24. Therefore considering all these aspects of the case and totality of the circumstances and on 34 C.C.No.27364/2017 J careful and meticulous appreciation of evidence adduced on behalf of the complainant and accused the complainant has successfully established beyond all reasonable doubt that, he has lent an amount of Rs.3 Lakhs to the Accused and in turn the Accused has issued the Ex.C.1 cheque in question in his favour towards discharge of the said loan amount and thereafter the complainant has presented the said cheque through his banker and same was returned dishonoured with an endorsement of "Funds Insufficient" and thereafter he got issued legal notice to the accused and the said notice was served on her, inspite of it, the Accused did not paid the cheque amount, hence the complainant filed the present complaint against the accused. On the other hand, the accused has failed to rebut the presumption available infavour of the complainant with regard to the existence of legally recoverable debt under Ex.C.1 Cheque. 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.
25. Point No.2: Negotiable Instrument Act 35 C.C.No.27364/2017 J was enacted to bring credibility to the cheque and the very purpose of enactment is to promote the use of negotiable instrument, while to discourage the issuance of cheques 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.3,15,000/= (Rupees Three 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 (3) three months for the offence 36 C.C.No.27364/2017 J 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.3,10,000/= (Rupees Three 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.
Her Bail bond stands cancelled.
. 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 26th day of May, 2020).
(SRI.S.B. HANDRAL), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Sri.G.K. Srinivasan;37 C.C.No.27364/2017 J
2. List of documents exhibited on behalf of the Complainant:-
Ex.C-1 : Original Cheque; Ex.C-1(a) : Signature of the Accused; Ex.C-2 : Bank Challan Ex.C-3 : Bank Memo; Ex.C-4 : Office copy of the Legal Notice; Ex.C-5 : postal receipt Ex.C-6 : Postal Acknowledgement; Ex.C.7 : Courier Receipt
3. List of witness/s examined on behalf of the Accused:-
DW.1 : Smt. Manjula.
4. List of documents exhibited on behalf of the Accused:-
Ex.D.1 : Original Cheque.
(SRI.S.B.HANDRAL),
XVI ACMM, Bengaluru City.
38 C.C.No.27364/2017 J
26.5.2020 Judgment pronounced in the open court
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.3,15,000/= (Rupees Three 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 (3) three months 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.3,10,000/= (Rupees Three 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.
Her Bail bond stands cancelled.
. Office is directed to furnish free certified copy of this judgment to the Accused incompliance of Sec.363(1) of Cr.P.C.
39 C.C.No.27364/2017 JXVI ACMM, B'luru.