Bangalore District Court
Chayakumar vs Lalitha on 12 April, 2021
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 12th day of April - 2021
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.31703/2018
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Chayakumar,
S/o.Late.Thimmesh,
Aged about 20 years,
R/at No.10/2A, 1st Cross,
Cholurupalya, Magadi Road,
Bengaluru-23.
(Rep. by Sri.H.R.Sanjeevegowda, Adv.)
V/S
Accused : Lalitha,
D/o.Mallikarjuna,
Aged about 21 years,
R/at. No.28, 1st Floor,
1st Cross, Cholorupalya,
Magadi Road, Bengaluru-23.
(Rep.by Sri.N.Gopi, 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 : 12.04.2021.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
Judgment 2 C.C.No.31703/2018
JUDGMENT
The complainant has presented the instant complaint against the accused on 25.10.2018 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheque of Rs.1,80,000/-.
2. The factual matrix of the complainant case is:
The complainant has pleaded that, the complainant and accused are well known to each other and in that acquaintance, she had approached the complainant for hand loan of Rs.1,80,000/- to meet out her domestic expenditure and discharge the existing legal debts during the last week of February, 2018. On considering her request, on humanitarian ground, the complainant on 26.02.2018 paid sum of Rs.1,80,000/- to the accused by way of cash as hand loan, and she agreed to repay the same within 4 months and also issued a post dated cheque bearing No.142753 dated:14.06.2018 drawn on ICICI Bank, Bannerughatta Road Branch, Bengaluru and assured to pay the amount covered under the cheque on the date made mentioned therein.
The complainant has further alleged that, he presented the said cheque for encashment through is banker viz., Canara Bank, Judgment 3 C.C.No.31703/2018 Adhichunchanagiri Branch, Bengaluru on 05.09.2018. The said cheque as per endorsement dated:06.09.2018 came to be dishonoured for the reasons "Drawers Signature Differs". Thereafter, through his advocate the complainant got issued legal notice by way of R.P.A.D., on 15.09.2018, the same came to be served on her on 19.09.2018. Despite that, she not paid the amount covered under the cheque nor replied the said 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, this court 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.
4. In response to the summons, the accused appeared through her counsel and obtained 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, he himself choosen to examined as PW.1 and got marked Exs.P1 to P5. The PW.1 Judgment 4 C.C.No.31703/2018 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 answer given by her was recorded. In this case, the accused not choosen to enter into witness box and also not produced any document.
7. Complainant counsel has addressed his side arguments. Accused counsel has not addressed his side arguments. Inspite of given liberty to file his written arguments, but accused counsel has not submitted his written arguments.
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 accused issued the post dated Ex.P1 cheque bearing No.142753, dated:14.06.2018 for sum of Rs.1,80,000/- drawn on ICICI Bank, Bannerughatta Road Branch, Bengaluru, he paid sum of Rs.1,80,000/- for discharge of legal recoverable debt,?
2) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?
3) What Order?
Judgment 5 C.C.No.31703/2018
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
10. 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 his case choosen to examined himself and filed affidavit by reiterating the complaint averments in toto, and produced the documents at Exs.P1 to P5, they are:
a) Ex.P1 is the cheque bearing No.142753 issued by the accused for sum of Rs.1,80,000/-
dated:14.06.2018, drawn on ICICI Bank, Bannerghatta Road Branch, Bengaluru.
b) Ex.P1(a) is the alleged signature of accused.
c) Ex.P2 is the Bank Memo dated:06.09.2018.
d) Ex.P3 is the Legal Notice dated:15.09.2018.
e) Ex.P4 is the Postal receipt.
f) Ex.P5 is the postal acknowledgment card.
11. The PW.1 was subjected to the cross-examination by the advocate for the accused.
Judgment 6 C.C.No.31703/2018
12. While appreciate the materials on records and evidence, this court has gone through the decision stated supra apart from the other decisions.
13. After detailed cross-examination done by the advocate for accused to the PW.1, the complainant got closed his side. Thereafter, whatever the incriminating evidence made against the accused was read over and explained to her as required under Section 313 of Cr.P.C., wherein, she denied the same and gave his statement that:
"ನನನ ಪರರದಯಯದ ರವದದ ಸಲ ಪಡದಲಲ ಹಗಗ ರವದದ ಹಣದ ಪವತಗಗ ನಪ-1 ಚಕನನನ ಪರರದಗ ನದಡಲಲ. ನಪ-1 ಚಕ ನನನದನ, ಆದರ ಅದರಲರನವ ಸಹ ನನನದಲಲ. ನನನ ತಯಗ ಚಕಕನನ ನ ದ , ಅದನ ಹದಗ ಪರರದ ಬಳ ಹಗದಯತಯದನ ಗಗತತಲಲ. ಚಕನ ನದಡದನ ಮತತ ಪರರದಗ ನದಡಲನ ಭದದಳಳಲಲ."
14. In this case, Though, the accused gave statement as such, to prove his defense, not choosen to entered in to witness box nor produced any documents before the court.
In support of his case the complainant through his counsel has produced the citation and relied upon same, it is;
a) 2016 (1) Civil L.J. 478
Judgment 7 C.C.No.31703/2018
15. On going through the rival contentions of the parties, it made clear that, the accused in this case has seriously attack on the claim put forth by the complainant. On going through the materials it discloses, the complainant has brought the present case against the accused based on the questioned cheque at Ex.P1. Therefore, it is needs to draw the presumption as per Sections 118 and 139 of Negotiable Instruments Act. As per Section 118(g), it shall be presume that, unless the contrary is proved, the holder of the cheque, the complainant received the cheque for discharge of legal liability. This presumption is rebuttable. Accordingly, Sections 139 and 138 of Negotiable Instruments Act, it also requires to presume that, cheque was drawn for discharge of liability of drawer, it is presumption under law. Therefore, it made clear that, by virtue of the above said sections stated, it made clear that, it requires to draw statutory presumption in favour of complainant that, in respect of discharge of existence of legally recoverable debt, the accused got issued the Ex.P1-cheque unless and until contrary prove. Therefore, as per those sections, it made clear that, it is the initial onus on the accused to prove his case based on the principles of 'Preponderance of Probabilities'.
Judgment 8 C.C.No.31703/2018 It is require to cite the decision reported in AIR 2010 SCC 1898, in a case between Rangappa V/s Mohan. Wherein, the Hon'ble Apex Court pleased to observe that, the obligation on the prosecution may be discharged with the help of presumption of law or facts unless the accused adduce evidence showing the reasonable probability of non-existence or presumed fact. Wherein also it was pleased to observed that, the accused can prove the non-existence of consideration by raising probable defence. If accused is able to discharge the initial onus of proof of showing that, the existing of consideration was improbably or adverse or the same was illegal, the onus would shift to the complainant, who will be obliged to prove it as a matter of fact, and upon its failure to prove would dis-entitle his to grant the relief on the basis of Negotiable Instruments Act. The burden on the accused of proving the non-existence of consideration can either direct or by bringing on record the preponderance of probabilities by referring to the circumstances upon which, he relies could bare denial of passing consideration apparently does not appears to be any defence. Something which is probable has to be brought on record for getting benefit of shifting the onus of proving to the complainant. To disprove the presumption, the accused has to bring on record such facts and circumstances upon the Judgment 9 C.C.No.31703/2018 consideration of which the court may either believe that, consideration did not exist or its non-existence was so probable that, a prudent man would, under the circumstances of the case, act upon that, it did not exist. Therefore, it made clear that, the accused need to take the probable defence mere denial is not enough.
That apart, in a decision reported in ILR 2006 KAR 4672, in a case between J.Ramaraj V/s Hiyaz Khan. Wherein, it was pleased to observed that, mere denial of issuing cheque, whether is sufficient to discharge the initial burden is to be looked into. In that dictum, it was pleased to held that, mere denial of issuing cheques would not be sufficient as it is time and again noted that, once the cheque issued duly signed by the accused, the presumption goes against her as per Section 139 of Negotiable Instruments Act.
16. On going through the provisions referred supra, it made clear that, whereas the presumption must prove that, guilt of accused beyond the reasonable doubt. The standard or proof so as to prove a defence on the part of the accused is 'Preponderance of Probabilities'. Inference of 'Preponderance of Probabilities' can be drawn, not only from the materials brought Judgment 10 C.C.No.31703/2018 on record by parties, but also by reference to the circumstances upon which he relies.
17. On going through the above authorities as well as dictums, it made clear that, it is the initial burden on the accused to prove her probable defence in order to rebut the statutory presumption as well as the case put forth by the complainant. In the case on hand, the accused had protested the claim of complainant, though she denied the same during the course of cross of PW.1, she made suggested her defence to PW.1 that:
"DgÉÆæAiÀÄ vÁ¬Ä ªÀÄvÀÄÛ £À£Àß vÁ¬Ä ¸ÉßûvÀgÁVzÀÄÝ, 2017 gÀ°è aÃnAiÀÄ ªÀåªÀºÁgÀPÉÌ ¸ÀA§AzÀs¥ÀlÖAvÉ £À£Àß vÁ¬Ä DgÉÆæAiÀÄ vÁ¬Ä¬ÄAzÀ DPÉAiÀÄ UÀªÀÄ£ÀPÉÌ ¨ÁgÀzÀAvÉ ¥ÀqÉzÀ SÁ° ZÉPÀÌ£ÀÄß §¼À¹PÉÆAqÀÄ ¸ÀļÀÄî ¥ÀæPÀgÀt zÁR®Ä ªÀiÁrzÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è."
18. On going through the said suggestion made to the PW.1 it discloses the defence of accused that, the mother of the complainant and accused were friends, in the year 2017 in connection to the chit transaction, the mother of the complainant, without the knowledge of the accused, through the mother of the accused took the cheque and by misusing the same filed the false case. The said defence manifest the contention of the accused that, the mother of the accused took away her cheque and given Judgment 11 C.C.No.31703/2018 to the mother of the complainant and not denied the signature therein, its execution and issuance to the complainant herein. The said defence discloses, the accused has placed altogether different defence by way of suggestion made to PW.1. If at all, in connection to the any chit the mother of the accused gave her cheque to the mother of the complainant, definitely, she needs to suggest to PW.1 as to, who run the chit, what was its amount, premium, duration, members and other particulars, but without any such suggestion mere made vague suggestion, it does not suffice the probable defence of the accused. Therefore, it discloses, the accused took mere plausible defence. Hence, it no way destroyed or damaged the case of complainant or statutory presumption.
19. That apart, the defence taken by the accused while read over and explained the incriminating evidence made against her as per Section 313 of Cr.P.C. she denied the same and admitted the receipt of legal notice and gave her statement by contending that, she not borrowed any loan from the complainant and for its repayment she never issued the Ex.P1-cheque and signature found therein is not of her. Even she stated that, she gave said cheque to her mother and she does not know, how it came to the complainant, hence, she not liable to pay any money. On going Judgment 12 C.C.No.31703/2018 through the said statement given by the accused, she denies her signature found in Ex.P1-cheque, but no such specific suggestion is made to PW.1 during the cross-examination of PW.1.
20. On going through the various defence taken by the accused while suggested to PW.1, it does not discloses, denial of her signature as found in the cheque. However, the advocate for accused cross-examined the PW.1, wherein, it was suggested to him the defence of the accused as to the friendship of mother of complainant and accused, in connection to the chit transaction in the year 2017 the mother of the complainant took accused cheque through the mother of accused without her notice. From the said factum it made clear that, the accused cheque came to the complainant via mother of the accused. As per Section 138 of Negotiable Instruments Act, it made clear that, where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is attracts Section 138 of Negotiable Instruments Act, if it dishonoured and not complied the demand made by the drawee. As per said Section, no need to the mother of accused to issue her cheque for her liability, but if cheque of the accused was issued definitely, it made clear that, accused Judgment 13 C.C.No.31703/2018 acknowledged the liability on herself of her mother for its repayment, got issued the questioned cheque has to be presumed. Therefore, without the knowledge of accused, her cheque came to the custody of the complainant via his mother, is hight difficult to accept, unless the accused proved the same. Except the said suggestion suggested to PW.1, nothing has revealed in the cross of PW.1. The PW.1 in his cross-examination deposed, he is working as Engineer in BBMP for the salary of Rs.25,000/- on contract basis, apart from that, he used to do Uber delivery boy as part time job and earn. Even he categorically deposed, he pad the loan amount of Rs.1,80,000/- to the accused on 26.06.2018. Even he deposed, the said money is not his exclusive money, it joins his mother money also. Though he deposed as such, no suggestion is made to PW.1, as to denial of his gathering of income from the profession as well as mobilized through his mother. Thereby, whatever the explanation given by the PW.1 as to mobilization of fund and alleged lent on 26.06.2018, as reasserted in his cross-examination were not denied by way of any suggestion. Though, he had such financial capacity, unless disprove the same simply made the suggestion by questioning the financial capacity of the complainant does not holds any water. Thereby, the PW.1 withstood his contention as Judgment 14 C.C.No.31703/2018 to alleged mobilization of fund and lent to the accused. Even he deposes, for the purpose of marriage of accused, she took loan. In the pleading also he contended, to meet domestic expenditure and to discharge the existing legal debts, the accused borrowed the loan. The said purpose, including approach made by the accused as well as borrowed loan is not been denied by way of any suggestion to PW.1.
21. No doubt, the PW.1 in his cross-examination specifically deposed, on 26.02.2016 he lent loan of Rs.1,80,000/- to the accused out of the savings made by him from his work of Civil Engineer part time having monthly salary of Rs.25,000/- and part time work of Uber delivery boy. The said contention taken by the complainant in earning money was not denied by the accused. No doubt, whatever the question posted by the accused counsel during his cross-examination, was been clearly explained by the complainant. More categorically on the 1 st day of cross- examination he deposed that, on 26.02.2018 he lent loan of Rs.1,80,000/- to the accused. No doubt, on the another day cross-examination, though PW.1 has clarified, as to alleged lent of loan as such, when the advocate for accused questioned on that day, he deposed, on 26.06.2018 lent loan to the accused in his house which includes his mother money also. The same is also Judgment 15 C.C.No.31703/2018 not suggested, whether it was the wrong date as against the pleading or earlier date of deposition of PW.1 etc nothing got clarified by the accused by way of any suggestion. The date of lent was clearly deposed by the PW.1 on the 1 st day of cross- examination, therefore whatever the discrepancy happened with regard to the date on the 2nd day of cross-examination is not vital or would not taken away the claim of complainant, as to alleged lent of loan. Even there is no suggestion made by the accused side as to the alleged pleading and explanation given by the PW.1 as to the lent of loan to the accused on 26.02.2018 for the tune of Rs.1,80,000/-. On imaginary ground go on asked the clarification, but PW.1 to the extent known to him was specifically explained satisfactorily and withstood his contention as to the alleged lent of loan to the accused. The accused took up the defence as in connection to the cheque in the year 2017, the mother of the accused took away the cheque of the accused and misused the same, the complainant has filed the present case. If at all, it was her defence definitely, it is the accused and her mother needs to entered into witness box and lead evidence or produce any documentary evidence, in that regard, no explanation made by the accused. Thereby, it made clear that, the accused without any Judgment 16 C.C.No.31703/2018 base took bald and baseless contention, therefore, no reliance can be placed on the same.
22. No doubt, the PW.1 has deposed while the accused borrowed the loan, she gave questioned cheque to him. It was his pleading also the said factum was not denied by the accused by way of any suggestion. That apart, on the date of presentation of the cheque at Ex.P1, the same came to be dishonoured by virtue of banker slip at Ex.P2 for the reasons 'drawers signature differs'.
It is relevant to cite decision reported in 2016 (1) Civil L.J. 478, in a case between Sushil Kr. Mandal V/s. Probodh Kr. Dihingia.
"On going through the said dictum, though it leads to draw the inference that, on the ground that, signatures do not match implies that the specimen signatures do not match the signature on the cheque. It would constitute a dishonour within the meaning of Section 138 of Negotiable Instruments Act."
23. In the present case on hand, when there is different in signature of the accused definitely, it is the complainant needs to establish that, why the said difference are happened, since the accused has denied her signature in the cheque. Therefore, on Judgment 17 C.C.No.31703/2018 account of the complainant has deposed, contrary date as to the alleged lent of loan in his cross-examination, the endorsement given by the bank authority is not the sole criteria to suspect. It made clear that, the bank authority given the said endorsement as her signature is not tallied in accordance with the specimen signatures maintained in the bank, definitely, it attracts the offence under Section 138 of Negotiable Instruments Act. From the signature of the accused as found in cheque, since it was not accepted by the bank authority as per Ex.P2, definitely, the bonafidness of the accused in putting different signature in the cheque has to be presumed. In order to defeat the right of the complainant, the accused affixed signature differently in the cheque, therefore, the same came to be dishonoured. If at all, the Ex.P1-cheque does not bares her signature definitely, it is her to produce necessary admitted signature, which pertains to undisputed point of time to establish, her signature is altogether different. But in that regard, no effort is made by accused. Even she not sought to refer the said document for FSL for obtaining the genuineness report. But no such effort is made, therefore, it made clear that, the accused in order to avoid the payment of amount covered under the cheque. Though, herself got issued the cheque to the complainant by affixed her signature differently Judgment 18 C.C.No.31703/2018 definitely, it attracts offence punishable under Section 138 of Negotiable Instruments Act.
24. Though, she stated got received legal notice as per Ex.P3 personally for the reasons better known to her, she not replied. Therefore, it made clear that, since she needs to pay the amount covered under the cheque, she not took pain to issue reply notice. Therefore, it also leads to draw the inference that, since, the allegation made by the complainant in the notice appears to be true, hence, not cause any reply. Though she prosecuted the matter years together for the reasons better known to her, she not choosen to enter into witness box, nor made any suggestion as to denial of borrowing of loan, or issuance of cheque. Even there is no suggestion made to PW.1, as to the signature found at Ex.P1(a) is not of the accused or disprove the factum of service of legal notice. Therefore, it made clear that, the accused though knew that, she liable to pay the amount covered under the cheque as legally recoverable debt, she made unfruitful effort in dodge the matter. There is no substance in the probable defence of the accused, contrary to the complainant has discharged his burden and proved the 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 Judgment 19 C.C.No.31703/2018 with the amount covered under the cheque at Exs.P1 at Rs.1,80,000/-. 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 his case successfully. Despite that, the accused has not set right the wrong committed by her as per Section 138 of Negotiable Instruments Act.
25. 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 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 his 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 cheque amount. Out of the said fine amount, Judgment 20 C.C.No.31703/2018 sum of Rs.1,75,000/- 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 10 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 his 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.
26. 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.1,80,000/-.
Out of the said fine amount, sum of Rs.1,75,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C.
Judgment 21 C.C.No.31703/2018 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 10 (Ten) 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.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 12 th day of April - 2021) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Chaya Kumar List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque Ex.P1(a) : Signature of accused Ex.P2 : Bank endorsement Ex.P3 : Office copy of legal notice Ex.P4 : Postal receipt Ex.P5 : Postal Acknowledgment card
List of Witnesses examined on behalf of the defence:
- None -
Judgment 22 C.C.No.31703/2018 List of Exhibits marked on behalf of defence:
- Nil -
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 23 C.C.No.31703/2018 12.04.2021. Comp - Accd - For Judgment
Judgment 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.1,80,000/-.
Out of the said fine amount, sum of Rs.1,75,000/- 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 24 C.C.No.31703/2018 In default of pay the fine amount, the accused shall under go simple imprisonment for 10 (Ten) 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.