Bangalore District Court
Sri. Shivanna S vs Smt. Latha P on 24 February, 2020
IN THE COURT OF XXI ADDL.CHIEF METROPOLITON
MAGISTRATE, BENGALURU CITY
Present: Sri. V. NAGARAJA, LL.B., LL.M.,
XXI Addl. Chief Metropolitan Magistrate,
Bengaluru.
Dated this the 24th day of February, 2020
C.C. No.31394/2018
COMPLAINANT: Sri. SHIVANNA S
S/o. Late. Siddappa,
Aged about 45 years,
R/at. No.41/1, Adityaanugraha,
S.K. Lane, Chikkamavalli,
Krumbegul Road,
Bengaluru - 560 004.
(Reptd. By: HCR., Advocate)
V/s.
ACCUSED: Smt. LATHA P
W/o. Ramdev,
Aged about 35 years,
R/at. Sree Cheluvarayaswamy Nilaya,
No.42, Vinayaka Layout,
Nayandahalli,
Mysore Road,
Bengaluru - 560 039.
(Reptd. By: BV., Advocate)
:JUDGMENT:
Complainant has filed this complaint under Section 200 of Cr.P.C. r/w Section 138 of N.I. Act, seeking for penalizing the accused for the offence punishable under Section 138 of N.I. Act and also for awarding compensation to him.
2 C.C.No.31394/2018
2. Case of the complainant in a nutshell is that:
He and accused are close family friends. So, in that acquaintance, in the month of January 2018, accused had approached him for financial assistance of Rs.3,00,000/-
for her legal necessities. So, on considering her request, in the month of February 2018, he paid Rs.2,00,000/- to accused by way of cash, whereas accused after receiving the said amount, she assured to repay the same within six months. It is further averred that after expiry of six months, the complainant requested her to repay the above said amount, but accused went on postponing the same on pretext or the other. Ultimately, in order to discharge above said loan liability, she issued him a cheque bearing No.047323 dated 30.08.2018 for a sum of Rs.2,00,000/-
drawn on SVC Bank, Vijayanagara Branch, Bengaluru and assured to honour the said cheque. So, believing the words of the accused, he presented the above said cheque through his banker i.e., State Bank of India, Jayanagara 9th Block Branch, Bengaluru. But the said cheques was dishonoured for the reason of "Funds Insufficient" in the account of accused. So, the bank authorities issued endorsement dated 03.09.2018. So, he got issued legal 3 C.C.No.31394/2018 notice dated 22.09.2018 through RPAD to accused regarding dishonour of cheque and called upon him to pay cheque amount, but accused intentionally evaded to receive the said notice and managed to get endorsement that "Insufficient Address\Returned to Sender". However, accused contacted the complainant's counsel through her mobile phone and visited to his office on 29.09.2018 and personally received legal notice by affixing her signature on the office copy of the legal notice and assured to pay the cheque amount, but failed to pay the cheque amount.
Hence, accused has committed offence punishable U/s.138 of NI Act. Hence, he is constrained to file this complaint seeking for penalizing the accused for the offence punishable under Section 138 of N.I. Act., and also seeking for awarding of compensation to him.
3. In pursuance of summons issued by this court, accused made appearance through her counsel and obtained bail and now she is on bail.
4. As these proceedings are summary in nature, substance of accusation read over and explained to accused in language known to her whereas, she pleaded not guilty and claimed for trial.
4 C.C.No.31394/2018
5. In order to prove the case of the complainant, he has been examined as PW-1 and got documents marked Ex.P-1 to Ex.P-6. After completion of evidence of complainant, statement of accused as specified U/s.313 of Cr.P.C., has been recorded and she has been examined as DW-1 and got document marked Ex.D-1.
6. I have heard arguments of both learned counsels.
7. Perused the records.
8. After perusal of records, the points arise for my consideration are:
1) Whether complainant proves beyond all reasonable doubt that accused in order to discharge her legally enforceable debt, she has issued a cheque bearing No.047323 dated 30.08.2018 for a sum of Rs.2,00,000/- drawn on SVC Bank, Vijayanagara Branch, Bengaluru?
2) Whether complainant further proves that he has complied with mandatory requirements as specified under Section 138 of N.I. Act?
3) What Order?
10. My findings on the above points are:
Point No.1 : In the Affirmative
Point No.2 : In the Affirmative
Point No.3 : As per final order,
for the following:
5 C.C.No.31394/2018
REASONS
11. Point No.1: As I have already stated, in order to prove the case of the complainant, he has been examined as PW-1 and he filed his examination-in-chief by way of affidavit by reiterating entire complaint averments as stated above. In support of his oral testimony, he relied upon Ex.P-1 to Ex.P-6.
12. On the other hand, accused has been examined as DW-1 and got document marked Ex.D-1.
13. Before appreciation of evidence of both parties, I am of the opinion, it is worth to note presumptions envisaged in N.I. Act as well as ratio laid down by the Hon'ble Apex Court in Three Judges Bench Judgment reported in (2010) 11 SCC 441 (Rangappa V/s. Sri Mohan) wherein it is held:
"The presumption mandated by Section 139 includes a presumption that there exists a legally enforceable debt or liability. This is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, herein, there can be no doubt that there is an initial presumption which favours the respondent /complainant."
It is further held:
6 C.C.No.31394/2018
Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the court in favour of the complainant. The presumption referred to Section 139 of the NI Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption.
14. So in the light of above presumptions and ratio decidendi laid down by Hon'ble Apex Court, if the present facts and situations are analyzed, it is obvious that according to complainant, accused has issued cheques for discharging of his liability. On the other hand, on considering the stand taken by the accused, it is obvious that though she disputes her liability as claimed by complainant, but she is not disputing the facts that cheque is belonged to her account and it bears her signature. So, as I have already stated in view of ratio laid down by Hon'ble Apex court in the Judgments stated supra, that as soon as accused admits the facts that cheque is belonged to her account and it bears her signature, then the mandatory presumption u/S 139 of N.I. Act comes to the aid of complainant and he can rest upon said presumption. 7 C.C.No.31394/2018
15. Whereas, learned counsel for defence argued that in order to raise presumption U/s.138 of NI Act, the condition precedent is that complainant must prove the existence of legally recoverable debt or liability, if he is able to prove the same, then only presumption can be raised otherwise not.
16. Having regard to the arguments of learned counsel for accused, it is important to note as I have already pointed out Hon'ble Three-Judges Bench Judgment of Hon'ble Supreme Court in Rangappa's case stated supra, it is clearly held:
"The presumption mandated by Section 139 includes a presumption that there exists a legally recoverable debt or liability"
17. So when above ratio clearly states that presumption includes existence of legally enforceable debt or liability then further proof of that fact is not required that too in summary proceedings. Because Hon'ble Apex Court in the judgment reported in (2009)2 SCC 513 (Kumar Exports V/s. Sharma Carpets) has clearly observed that:
Presumption literally means "taking as true without examination or proof"8 C.C.No.31394/2018
18. At this juncture, it is also worth to note ratio laid down by Hon'ble Apex Court in the judgment reported in (2014)5 SCC 590 (Indian Bank Association and others V/s. Union of India and others) wherein it is held by reiterating Section 143 of Negotiable Instruments Act and Section 264 of Cr.P.C., that:
"Section 264, Judgments in cases tried summarily - In every case tried summarily in which the accused does not plead guilty, the Magistrate shall record the substance of the evidence and a judgment containing a brief statement of the reasons for the finding"
"Thus, the Magistrate is not expected to record full evidence which he would have been, otherwise required to record in a regular trial and his judgment should also contain a brief statement of the reasons for the finding and not elaborate reasons which otherwise he would have been required to record in regular trials"
19. So, in the light of above ratio decidendi and in view of Section 143 of Negotiable Instruments Act and Section 264 of Cr.P.C., as this case is summary case, I am of the opinion it is not necessary to discuss elaborately with respect to legally enforceable debt when presumption includes existence of legally recoverable debt as held in the 9 C.C.No.31394/2018 above said judgment of Hon'ble Apex Court. So, the mandatory presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is to say the cheque was not issued for consideration and in discharge of any debt or liability, in other words, onus shifts on the accused to rebut the said mandatory presumption raised in favour of complainant as observed by Hon'ble Apex Court in the Judgment reported in (2009)2 SCC 513 (Kumar Exports V/s. Sharma Carpets).
Now the crucial question arises as to whether accused is able to rebut the said presumption or not?
20. It is significant to note on considering the defence of the accused, she contended that complainant is utter stranger to her and she has not borrowed any money from him and not issued present cheque to him. In fact, in the month of July 2018, her brother namely Mahesh had obtained her signed blank cheque by stating that he required her signed blank cheque to obtain personal loan from his friends and to give it for security purpose and he assured to return the said cheque after one month. But, after one month, when she demanded for return of her signed blank cheque, he went on postponing the same on 10 C.C.No.31394/2018 one or other pretext. Ultimately, on 29.09.2018, he took her to his friend's office by stating that he would hand over the cheque in the said office. However, after she visited to the said office, she came to know that said office is an Advocate's office, where she was asked to sign on some paper by assuring that he would hand over the cheque. So, believing their words, she affixed her signature on some papers and asked them to return her signed blank cheque, but the Advocate informed her that he would send the said cheque through her brother Mahesh. So, believing their words, she returned to her house and kept quite. But, after few months, she received summons from the court regarding present case. Then only, she came to know that her brother Mahesh, who is friend of complainant, both colluded together and misused her signed blank cheque and filed this false compliant only in order to grab money from her. Hence, present complaint is liable to be dismissed and she may be acquitted.
21. Whereas learned counsel for accused in support of above defence, he argued that there is no financial transaction between complainant and accused. Hence, question of issuance of present cheque to complainant 11 C.C.No.31394/2018 does not arise. In fact, accused's brother Mahesh, who is a friend of complainant, colluded together and filed this false complaint by misusing signed blank cheque of the accused. He further argued that complaint filed by the complainant is barred by limitation. He further argued that statutory notice not at all served on accused, whereas alleged service of notice personally on accused in the Advocate's office is not sufficient service. In fact, they obtained her signature on paper and created the same for the convenience of the complainant to file this complaint. Hence, on this ground alone, complaint is not maintainable. Hence, same is liable to be dismissed and accused may be acquitted.
22. Per contra, learned counsel for complainant argued that version of the accused cannot be believable and acceptable, because if really she had given present cheque for security purpose, then definitely she would have taken legal action to get back the said cheque. Even she did not give reply to legal notice issued by the complainant. So, these facts clearly show that accused has given present cheque for discharging of her liability. But, now the accused only in order to escape from her 12 C.C.No.31394/2018 liability, she has set up false story. Hence, her version cannot be believable. Hence, accused has failed to rebut the mandatory presumption. Hence, she has to be convicted and maximum sentence may be imposed.
23. Having regard to the arguments of both learned counsels, it is worth to note ratio decidendi laid down Hon'ble Apex Court in very Rangappa V/s. Sri. Mohan's case, it is clearly observed that:
"A mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. In other words, the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the court"
24. At this juncture, it is worth to note ratio decidendi laid down by the Constitution Bench of Hon'ble Apex Court in the judgment reported in AIR 1964 SC 575 (Dhanvantrai Balwantrai Desai V/s. State of Maharashtra) which has been followed in the subsequent judgment reported in (2001)6 SCC 16 (Hiten P.Dalal V/s. Brathindranath Banerjee) wherein it is held that:
"That the distinction between the two kinds of presumption lay not only in the 13 C.C.No.31394/2018 mandate to the court, but also in the nature of evidence required to rebut the two. In the case of a discretionary presumption the presumption if drawn may be rebutted by an explanation which "might reasonably be true and which is consistent with the innocence" of the accused. On the other hand in the case of a mandatory presumption "The burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation is offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible"
25. At this juncture, it also worth to note in another judgment of Hon'ble Apex Court reported in (2010)8 SCC 383 (Meghmala and others V/s. Narasimha Reddy and others) wherein it is held that:
"It is not like any other criminal case where the accused is presumed to be innocent unless the guilt is proved. The presumption of innocence is a human right, however, subject to the statutory 14 C.C.No.31394/2018 exceptions, the said principle forms the basis of criminal jurisprudence. For this purpose, the nature of offence, its seriousness and gravity thereof has to be taken into consideration. Statutes like the Negotiable Instruments Act, 1881; the Prevention of Corruption Act, 1998; and the Terrorist and Disruptive Activities (Prevention) Act, 1987, provide for presumption of guilt if the circumstances provided in those statutes are found to be fulfilled and shift the burden of proof of innocence on the accused. Thus, the legislature has adopted a deviating course from ordinary criminal law shifting the burden on the accused to prove that he was not guilt"
26. So from the above ratio, it is crystal clear that proceedings U/s.138 of NI Act is not like any other criminal case where the accused is presumed to be innocent unless the guilt is proved. On the other hand the legislature has adopted a deviating course from ordinary criminal law by shifting the burden on the accused to prove that he is not guilty. So, the accused must rebut the mandatory presumption by raising probable and acceptable defence to the satisfaction of the court, because the presumption raised in favour of complainant is mandatory presumption, but not general presumption. 15 C.C.No.31394/2018
27. In the light of above ratio decedendi, if the present facts and situations are analyzed, it is important to note, accused has contended that she has not borrowed any loan from complainant and has not issued present cheque to complainant. In fact, in the month of July 2018, her brother namely Mahesh had obtained her signed blank cheque by stating that he required her signed blank cheque to obtain personal loan from his friends and to give it for security purpose and now her brother, who is friend of complainant, both colluded together and misused her signed blank cheque and filed this false compliant only in order to grab money from her. It is important to note, though accused has raised such contention, but she has not chosen to examine her brother Mahesh or even she has not placed any cogent and convincing evidence to prove that she has issued present cheque to her brother for security purpose and he colluded with complainant, misused the same. So, in absence of cogent and convincing evidence, her version cannot be believable and acceptable.
28. At this juncture, it is also worth to take note of the conduct of the accused as specified U/s.114 of Indian 16 C.C.No.31394/2018 Evidence Act that as per her contention, complainant and her brother have colluded together and misused her signed blank cheque which was given for security purpose to her brother. If that is the case, a reasonable doubt arises in the mind of the court as to why accused has kept quite for along time without taking any legal action against her brother Mahesh or complainant to get back her cheque and also alleged misuse of cheque by the complainant or her brother Mahesh. So, I am of the opinion, if at all accused had not issued present cheque to complainant for discharging of her legally enforceable debt, then definitely accused would have initiated legal proceedings against the complainant or her brother Mahesh with respect to alleged misuse of cheque, because no prudent man will keep quite, when her cheque is misused by somebody else. So, non- taking any of these actions by the accused at appropriate time, it creates a reasonable doubt in the mind of the court regarding acceptance of her version that complainant misused the cheque. So, I come to clear conclusion that the defence raised by the accused is not probable and acceptable.
29. Coming to yet another argument of learned counsel for accused that admittedly accused issued signed 17 C.C.No.31394/2018 blank cheque, whereas complainant has filled up the contents of the cheque for his convenience which amounts to material alteration etc.
30. Having regard to the arguments of learned counsel for accused at this juncture, it is worth to note ratio laid down by Hon'ble Apex Court in the recent judgment reported in 2019 SCC On line SC 138 = Crl. Appeal No.230-231/2019 2019 (@SLP(Crl) No.9334- 35/2018) dated 06.02.2019 (Bir Singh V/s. Mukesh Kumar) wherein it is held that:
"A meaningful reading of the provisions of the Negotiable Instruments Act, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had not been issued for payment of a debt or in discharge of a 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. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted"
"If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other 18 C.C.No.31394/2018 particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence"
"It may reasonably be presumed that the cheque was filled in by the appellant- complainant being the payee in the presence of the respondent-accused being the drawer, at his request and/or with his acquiescence. The subsequent filling in of an unfilled signed cheque is not an alteration"
31. Having regard to the arguments of learned counsel for accused at this juncture, it is worth to note ratio laid down by Hon'ble Apex Court in the judgment reported in (2002)7 SCC 150 (P.K. Manmadhan Kartha V/s. Sanjeev Raj and another) wherein it is held that:
"Difference of handwriting and ink on the cheque did not rebut the statutory presumption U/s.139 and 118 of NI Act"
32. At this juncture it is also worth to note that view taken by Hon'ble High Court of Karnataka reported in ILR 2001 KAR 4127 (S.R. Muralidhar V/s. Ashok G.Y.) wherein it is held that:
19 C.C.No.31394/2018
Section 20 of NI Act - Inchoate stamped instruments "No law provides that in case of any negotiable instrument entire body has to be written by maker or drawer only. What is material is signature of drawer or maker and not the body writing hence question of body writing has no significance"
"It is not objectionable or illegal in law to receive a inchoate negotiate instrument duly singed by the maker despite the material particulars are kept blank if done with an understanding and giving full authority to the payee to fill up the material contents as agreed upon. Such a course of action in law cannot vitiate the transaction nor can invalidate the negotiable instrument issued and such transaction fully binds the maker of the Negotiable Instrument"
33. So, in the light of above principle if the present facts and situations are analyzed, as I have already pointed out accused is not disputing issuance of cheque and her signature thereon, whereas complainant is able to prove the existence of liability of Rs.2,00,000/- (covered under the cheque) by the accused as on the date of issuance of cheque by the aid of mandatory presumption. So, under such circumstances, filling up body of the cheque by complainant or somebody else will not invalidate the cheque and that itself will not rebut the 20 C.C.No.31394/2018 mandatory presumption raised in favour of complainant when version of the accused itself is not probable and acceptable. Hence, I don't find any force in the arguments of learned counsel for accused.
34. Coming to arguments of learned counsel for accused that complainant had no financial capacity to lend such a huge amount Rs.2,00,000/- etc.
35. Having regard to the arguments of learned counsel for accused, at this juncture, it is worth to note ratio laid down by Hon'ble Apex Court in the recent judgment reported in (2019) SCC Online SC 389 = Criminal Appeal No.508 of 2019 (Rohitbhai Jivanlal Patel V/s. State of Gujarat and another) wherein it is held:
"In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the Trial Court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the Trial Court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the 21 C.C.No.31394/2018 accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the accused-appellant"
"Presumption existing in favour of the complainant by virtue of Sections 118 and 139 of the NI Act. Needless to reiterate that the result of such presumption is that existence of a legally enforceable debt is to be presumed in favour of the complainant. When such a presumption is drawn, the factors 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 relevant"
36. So, from the above ratio decedendi, it is crystal clear that when mandatory presumption has been raised in favour of complainant, which includes existence of legally enforceable debt, then court cannot expect evidence regarding the source of funds of the complainant for advancing loan to the accused, whereas expecting such evidence is contrary to presumption envisaged under 22 C.C.No.31394/2018 Section 138 of N.I. Act. So, source of funds of the complainant is totally irrelevant. Hence, I do not find any force in the arguments of learned counsel for accused.
37. Coming to another argument of learned counsel for accused that according to complainant, he advanced entire amount of Rs.2,00,000/- by way of cash which cannot be believable, because a loan more than Rs.20,000/- cannot be advanced in cash etc.
38. Having regard to the arguments of learned counsel for accused, at this juncture, it is worth to note principle laid down in the judgment of Hon'ble High Court of Bombay reported in 2013 Crl.L.J. (NOC) 572 (BOM.) (Krishna P. Morajkar V/s. Joe Ferrao and another) wherein it is held that:
"A plain reading of Section 269SS of the Income-tax Act shows that no person can accept any loan or deposit of sum of Rs.20,000/- or more otherwise than by an account payee cheque or account payee bank draft. It does not say that a person cannot advance more than Rs.20,000/- in cash to another person. It is clear that the restriction on cash advances was in fact on the taker and not the person who makes the advance. The penalty for taking such 23 C.C.No.31394/2018 advance or deposit in contravention of provisions of Section 269SS was to be suffered by one who takes the advance. Therefore, it was obviously impermissible to invoke these provisions for preventing a person from recovering the advance which he has made"
39. So, from the above view taken by Hon'ble High Court and on reading of Section 269SS of I.T. Act, it is crystal clear that it does not say that a person cannot advance more than Rs.20,000/- in cash to another person. It is clear that the restriction on cash advances was in fact on the taker/to accept said amount in cash and not the person who makes the advance. So, under such circumstances, I am of the opinion that this provision is against to borrower but not to lender. So, this provision will not helpful to the accused to rebut the presumption. Hence, I do not find any force in the arguments of learned counsel for accused.
40. As I have already pointed that Hon'ble Apex Court in the Constitution Bench and Larger Bench Judgments stated supra, it is clearly held that presumption envisaged U/s.138 of NI Act is not general presumption but it is mandatory presumption, so the said 24 C.C.No.31394/2018 presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible". So, I come to clear conclusion that accused has utterly failed to rebut the mandatory presumption raised in favour of complainant. Hence, I hold this point in Affirmative.
41. Point No.2: As I have already discussed in point No.1 that accused has issued cheque for discharging of her legally recoverable debt. Whereas, on perusal of bank endorsement given by bank authority clearly reveal that complainant had presented the said cheque within validity period, but said cheque was dishonoured with endorsement "Funds Insufficient". On perusal of Ex.P-3 which is legal notice issued to accused clearly reveal that the complainant got issued said demand notice to accused within specified time of 30 days from the date of receiving of endorsement from bank. On perusal of Ex.P-5, returned postal cover clearly reveals that it was returned with a postal shara "Insufficient Address/Returned to Sender"
42. At this juncture, it is worth to note, learned counsel for accused vehemently argued that present complaint is barred by limitation and statutory notice not 25 C.C.No.31394/2018 at all served as per law, whereas alleged service of notice to the accused personally in the office of counsel for complainant is not valid service. Hence, on this ground alone, complaint is liable to be dismissed etc.
43. It is important to note, records reveal that cheque was returned on 03.09.2018 with endorsement "Funds Insufficient". So, within 30 days, the complainant issued legal notice on 22.09.2018 through RPAD, but said RPAD cover returned with a postal shara "Insufficient Address/Returned to Sender" on 26.09.2018. It is important to note, learned counsel for complainant argued accused has managed to get such postal shara knowing the fact of dishonour of the cheque. So, she contacted the complainant and went along with him to the office of his counsel on 29.09.2018 and prayed time to pay the cheque amount and personally received the notice by affixing her signature on the very office copy of the notice i.e., on Ex.P-3 as admitted by accused herself in her cross- examination. Hence, notice served on accused in person has to be construed as due service.
26 C.C.No.31394/2018
44. Having regard to the arguments of both learned counsels, at this juncture, it is worth to note, accused in her cross-examination, she clearly admitted that:
"FUÀ vÉÆÃj¸ÀÄwÛgÀĪÀ ¤¦-3 £ÉÆÃn¹£À ªÉÄðgÀĪÀ ¸À»AiÀÄÆ ¸ÀºÁ £À£ÀßzÉà JAzÀÄ ¸ÀÆa¹zÀgÉ ¸Àj.
CzÉà jÃw £Á£ÀÄ D jÃw ¸À» ªÀiÁqÀĪÀ ¸ÀAzÀ¨ÀsðzÀ°è CzÀgÉÄÁA¢UÉ 29.09.2018 JAzÀÄ §gÉzÀÄ ¸À» ªÀiÁrgÀÄvÉÛÃ£É JAzÀÄ ¸ÀÆa¹zÀgÉ ¸Àj"
45. So, from the above admission of accused, it is crystal clear that she has received statutory notice in person in the office of complainant's counsel on 29.09.2018 i.e., within 30 days from the return of cheque. So, it can be easily stated that statutory notice has been duly served on accused as specified U/s.138 of NI Act(b) of NI Act.
46. Even otherwise, on perusal of address of the accused shown in notice as well as cause title of the complaint, they are properly addressed and sent through RPAD to the correct address of the accused. So in view of Sec 27 of General Clauses Act 1897 as well as ratio laid down by Hon'ble Apex Court in the Judgment reported in (1999)7 SCC 510 (K. Bhaskaran Vs. Sankaran Vaidhyan 27 C.C.No.31394/2018 Balan), (2017)5 SCC 373 (N. Paramesharan Unni V/s. G. Kannan) and another judgment (2004)8 SCC 774 (V. Raja Kumari V/s. P. Subbarama Naidu and another) wherein it is held that:
"Giving of notice is distinguished from receiving of the notice"
"On the part of the payee he has to make a demand by "giving a notice" in writing. If that was the only requirement to complete the offence on the failure of the drawer to pay the cheque amount within 15 days from the date of such "giving", the travails of the prosecution would have been very much lessened. But the legislature says that failure on the part of the drawer to pay the amount should be within 15 days "of the receipt" of the said notice. It is, therefore, clear that "giving notice" in the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer at the correct address"
"A payee can send the notice for doing his part for giving the notice. Once it is dispatches his part is over and the next depends on what the sendee does"
It is also held that:
28 C.C.No.31394/2018
"It is clear from Section 27 of General Clauses Act, 1897 and Section 114 of the Evidence Act, 1872, that once notice is sent by registered post by correctly addressing to the drawer of the cheque, the service of notice is deemed to have been effected. When a notice is sent by registered post and is returned with postal endorsement "refused" or "not available in the house" or "house locked" or "shop closed" or "addressee not in station", due service has to be presumed. Then requirements under proviso (b) of Section 138 stand complied with if notice is sent in the prescribed manner. However, the drawer is at liberty to rebut his presumption"
47. So, in the light of above ratio, if the present facts and situations are analyzed, as I have already pointed out that complainant has given notice in writing and same is sent through RPAD to the proper address of the accused. So, it is construed as deemed service. On the other hand, Ex.D-1 which is copy of e-Aadhaar Letter produced by the accused to show her address, will not helpful to her contention, because in the said document, her address is shown as Vinayaka Layout, Mysore Road, whereas in her cross-examination, she clearly admitted that earlier she was residing in Vinayaka Layout, Mysore Road that 29 C.C.No.31394/2018 address tallies with the address given in the notice as well as complaint. Hence, I do not find any force in the arguments of learned counsel for accused.
48. Coming to one more arguments of learned counsel for accused that complaint is barred by limitation etc.
49. Having regard to the arguments of learned counsel for accused, it is important to note, as I have already pointed out, cheque was returned on 03.09.2018 and complainant got issued legal notice on 22.09.2018 through RPAD and said RPAD cover returned with a postal endorsement "Insufficient Address/Returned to Sender" on 26.09.2018. So, 26.09.2018 is considered as deemed service and 15 days time is given to accused to make payment from that date. So, cause of action arose on 11.10.2018 and present complaint has been filed on 02.11.2018 i.e., within 30 days from the date of cause of action. Hence, complaint is well within time. Even otherwise, legal notice personally served on accused on 29.09.2018 and if same is taken into consideration, then the present complaint is filed on 02.11.2018 is well within 30 C.C.No.31394/2018 time. Hence, I do not find any force in the arguments of learned counsel for accused.
50. So on considering the oral coupled with the documentary evidence of the complainant, they clearly proved that complainant has complied with mandatory requirements as specified U/s.138(a) and (b) of N.I. Act. Whereas, accused has not paid the cheque amount within specified time, inspite of service of demand notice. Hence, accused has committed offence punishable U/s.138 of NI Act. Hence, I hold point No.2 in Affirmative.
51. Point No.3: For the foregoing reasons discussed on points No.1 and 2, I proceed to pass the following:-
ORDER Acting under Section 255(2) r/w 264 of Cr.P.C., the accused is hereby convicted for the offence punishable u/S.138 of Negotiable Instruments Act.
(V. NAGARAJA) XXI ADDL. C.M.M., BENGALURU.
On considering the facts and circumstances of the case, accused is hereby sentenced to pay fine of Rs.2,05,000/- (Two Lakh and Five Thousand only). In default she shall undergo simple imprisonment for a period of 2 (Two) months.31 C.C.No.31394/2018
In view of Section 357 of Cr.P.C., complainant is entitled for compensation of Rs.2,00,000/- (Two Lakhs only) out of above said fine amount.
After collecting the above fine amount, office is directed to pay Rs.2,00,000/- (Two Lakhs only) to complainant as compensation and defray remaining fine amount of Rs.5,000/-
(Five Thousand only) to state, after appeal period is over.
However, accused shall execute personal bond of Rs.2,05,000/- in view of Sec.437(A) of Cr.P.C.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
(Directly dictated to Stenographer on computer, computerized by him, corrected and then pronounced by me in the open court on this the 24th day of February, 2020) (V. NAGARAJA) XXI ADDL. C.M.M., BENGALURU.
ANNEXURE LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
PW-1 : Shivanna S LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P-1 : Cheque
Ex.P-2 : Return Memo
Ex.P-3 : Copy of Legal Notice
Ex.P-4 : Postal Receipt
Ex.P-5 : Returned Postal Cover
Ex.P-6 : Bank Challan
32 C.C.No.31394/2018
LIST OF WITNESSES EXAMINED FOR THE DEFENCE:
DW-1 : Latha P LIST OF DOCUMENTS MARKED FOR THE DEFENCE:
Ex.D-1 : Copy of Aadhaar Card
(V. NAGARAJA)
XXI ADDL. C.M.M., BENGALURU.