Bangalore District Court
Saroja Kannan vs Pushpalata.V on 13 April, 2022
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 13th day of April - 2022
PRESENT: SRI. N.K.SALAMANTAPI, B.A., LL.B.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.21995/2016
Complainant : Saroja Kannan,
W/o. Late A.M.S.Kannan,
Since dead rep. by Lrs.
1(a). S.Raghavendra,
S/o. Late A.M.S.Kannan,
R/at No.57, 12th C Main,
6th Block, Rajajinagar,
Bengaluru-10.
(Rep. by Sri.Rameshchandra, Adv.)
1(b). S.Sujay Babu,
S/o. Late A.M.S.Kannan,
R/at No.57, 12th C Main,
6th Block, Rajajinagar,
Bengaluru-10.
Ground Floor.
(Rep. by Sri.G.Abilash, Adv.)
V/S
Accused : Pushpalata.V,
W/o.Shashidharan.S,
Aged about 45 years,
Proprietrix of M/s. Impressive Interiors,
H.No.5/2, (New No.96)
'Sampoorna', 6th Cross,
N.R.Colony, Bengaluru-28.
(Rep.by Sri.Giridhar.H, Adv.)
Judgment 2 C.C.No.21995/2016
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Convicted.
DATE OF ORDER : 13.04.2022.
(N.K.SALAMANTAPI)
XXIII Addl.CMM., Bengaluru.
JUDGMENT
The original complainant has presented the instant complaint against the accused on 10.05.2016 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act for dishonour of cheques amount of Rs.10 lakhs.
2. In this case, earlier the accused was convicted on 08.04.2019. The accused has challenged the said judgment by preferring the Criminal Appeal No.1080/2019 before the Hon'ble LVIII Addl. City Civil and Sessions Judge, Bengaluru City (CCH-
59), wherein, the judgment of this court came to be set-aside and remanded the matter with a direction for fresh disposal in accordance with law. Accordingly, the said direction is complied by Judgment 3 C.C.No.21995/2016 this court and took the matter for judgment after giving sufficient opportunities to both side as per law.
3. The brief facts of the complaint are as under:
The accused was a relative of original deceased complainant through her husband by name A.M.S.Kannan. The husband of accused by name Sashidharan.S was the grand nephew of late.A.M.S.Kannan.
The original deceased complainant has further contended that in the 1st week of November 2012, both the husband of accused and accused represented to the original deceased complainant's husband and induced them to invest and procure a Bengaluru Development Authority Stray site through them and promised that they will get the sale deed executed and registered within six months in the name of the original deceased complainant's husband and if they fail to do so, they will repay the amount with 15% interest p.a. The accused's husband and the accused on the said promise received an amount of Rs.25 lakhs from the original deceased complainant's husband through cheques bearing No.214199 dated 17.11.2012 for Rs.6 lakhs, cheque bearing No.888803, dated 19.01.2013 for Rs.4 lakhs, cheque bearing No.123061 dated 02.07.2013 for Rs.4 lakhs, Judgment 4 C.C.No.21995/2016 cheque bearing No.123062 dated 02.07.2013 for Rs.5 lakhs, all the cheques were drawn on Karnataka Bank Ltd., Rajajinagar Branch, Bengaluru and Rs.4,46,000/- by way of cash, in all Rs.25 lakhs.
The original deceased complainant further contended that her husband asked the accused and her husband to execute the registered sale deed in his favour but since they postponed the same for one or other pretext. The original deceased complainant's husband insisted the accused and her husband either to execute the registered sale deed or return the amount, to which, the husband of accused got issued a cheque in favour of the original deceased complainant's husband bearing No.007505 dated 21.09.2015 for Rs.10 lakhs drawn on Saraswat Co- operative Bank Ltd., Chamarajpet Branch towards part discharge of liability. When the husband of original deceased complainant presented the said cheque for encashment through his banker viz., Karnataka Bank Ltd., the the same came to be dishonoured returned with an endorsement dated 22.09.2015 stating "Payment Stopped by Drawer".
The original deceased complainant further contended that her husband was diagnosed with Hepatocellular Carcinoma and Judgment 5 C.C.No.21995/2016 succumbed to the same on 07.02.2016. In order to clear the Hospital Bills and to meet the medical expenses, the original deceased complainant and her children demanded the accused and her husband to return the amount and also got issued legal notice dated 02.04.2016, demanding the amount covered under cheque bearing No.007505 towards discharge of part liability, to which, the accused has issued cheques bearing Nos.009368 dated 25.02.2016 for Rs.2 lakhs and another cheque bearing No.009369 dated 01.03.2016 for sum of Rs.3 lakhs, in all Rs.5 lakhs, both the cheques are drawn on Saraswat Co-operative Bank Ltd., Chamarajpet Branch, Bengaluru in the favour of original deceased complainant and when the said cheques were presented for encashment through her banker viz., Karnataka Bank Ltd., both the cheques were dishonoured with the memo dated 05.03.2016 stating "Payment Stopped by Drawer"..
The original deceased complainant further contended that the accused has also issued other two cheques bearing No.009365 dated10.03.2016 and another cheque bearing No.009366 dated 15.03.2016 for sum of Rs.5 lakhs each, drawn on Saraswat Co-operative Bank Ltd., Chamarajpet Branch, Bengaluru in favour of original deceased complainant. When, she presented the said cheques for encashment through her banker Judgment 6 C.C.No.21995/2016 viz., Karnataka Bank Ltd., the same came to be dishonoured with an endorsement dated 18.03.2016 stating "Payment Stopped by Drawer". The accused with malafide intention has instructed her banker to stop payments. Thereafter, the original complainant got issued statutory notice to the accused on 02.04.2016 by R.P.A.D and speed post through her counsel demanding the accused to pay the amount covered under the cheques and the same were duly served upon accused on 04.04.2016 and 05.04.2016. After receipt of legal notice, the accused has issued baseless and untenable reply on 27.04.2016 and failed to pay the amount covered under the cheques to the original deceased complainant. Thus, the accused committed an offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
4. After receipt of the private complaint, my predecessor in office took the cognizance and got registered the PCR and recorded the sworn statement. Since made out prima-facie grounds to proceed against the accused for the alleged offence, got issued process.
5. 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 Judgment 7 C.C.No.21995/2016 read over and explained to accused, wherein, she denied the same and claimed to have the defence.
6. When the case stage was set for cross of PW.1, at that time, the original complainant counsel submitted that the original complainant Smt.D.Saroja Kannan was expired on 23.11.2017 and her legal heirs i.e., complainant-1(a) and 1(b) were brought on record.
7. To prove the case of the original deceased complainant, the legal heir of original complainant by name S.Raghavendra, who is the younger son of deceased original complainant, himself choosen to examine as PW.1 and got marked Exs.P1 to P13. The PW.1 was subjected for cross-examination by the advocate for the accused. In this case, the learned counsel for complainant 1(b) is submitted that no evidence on behalf of complainant 1(b).
8. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein the accused denied the same. In support of the defence, the accused examined her husband by name Shashidharan as DW.1, but he has not produced any documents in support of his defence. The DW.1 was subjected for cross-examination by the advocates for the complainant 1(a) and 1(b).
Judgment 8 C.C.No.21995/2016
9. Both side counsels have addressed their arguments.
10. On going through the rival contentions, based on the substantial evidence available on record, the following points would arise for determination:
1) Whether the legal representatives of original deceased complainant proves beyond all reasonable doubt that the accused got issued Exs.P1 and P2-cheques bearing No.009365 and 009366 to the original deceased complainant towards partial discharge of legally recoverable debt or liability and the said cheques were dishonoured, thereby the accused has committed an offence punishable under Section 138 of Negotiable Instrument Act?
2) What Order?
11. 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 : As per final order, for the following:
REASONS
12. POINT No.1: The original deceased complainant has filed this complaint for an offence punishable under Section 138 of Negotiable Instruments Act against the accused and prayed to Judgment 9 C.C.No.21995/2016 punish the accused for an offence punishable under Section 138 of Negotiable Instruments Act.
13. To attract Section 138 of Negotiable Instruments Act, complainant should prove that; (1) the accused has issued cheques for discharge of legally recoverable debt. (2) The same were presented through her banker. (3) They were dishonoured on presentation. (4) The notice in terms of provisions was served on the accused and (5) Despite service of notice neither any payment was made nor other obligations, if any were complied within 15 days from the date of receipt of notice.
14. In order to prove the case of original deceased complainant, the complainant 1(a) filed his affidavit and himself examined as PW.1, wherein, he has reiterated the averments made in the complaint. In support of his contention, he relied upon the documents at Exs.P1 to P13. Among them, cheques bearing No.009365 and 009366 issued by the accused for sum of Rs.5,00,000/- each dated 10.03.2016 and 15.03.2016 drawn on The Saraswat Co-operative Bank Ltd., Shankar Mutt Road, Chamarajpet Branch, Bengaluru are marked as Exs.P1 and P2. The signatures are marked as Exs.P1(a) and P2(a). Exs.P3 and P4 are the Bank Endorsements issued by Karnataka Bank Ltd., Judgment 10 C.C.No.21995/2016 the contents of Exs.P3 and P4 disclose that the cheques bearing No.009365 and 009366 drawn for Rs.5,00,000/- each were dishonoured for the reasons "Payment Stopped by Drawer". Ex.P5 is the Legal Notice dated 02.04.2016, the recitals of Ex.P5 disclose that the original deceased complainant has issued this notice to the accused through her counsel. By issuing this notice, original deceased complainant called upon the accused to repay the cheques amount of Rs.10,00,000/- within 15 days from the date of receipt of notice. Exs.P6 and P7 are the Postal receipts. Ex.P8 is the postal acknowledgment card. Ex.P9 is the certified copy of detailed track events issued postal authority. Ex.P10 is the certified copy of reply notice dated 27.04.2016 issued by accused through her counsel by denying the contents of Ex.P5 statutory notice to the counsel for original deceased complainant. Ex.P11 is the certified copy of bank challan counter foils. Ex.P12 is the certified copy of bank account pass book pertaining to complainant 1(b) issued by Karnataka Bank Ltd. Ex.P13 is the copy of reply notice dated 27.04.2016 and Ex.P13(a) is some relevant portions of Ex.P13 reply notice. The PW.1 was subjected to the cross-examination by the advocate for the accused. In support of his case, the complainant-1(a) through his counsel has relied upon the decisions as under:
Judgment 11 C.C.No.21995/2016
a) 2021 4 Crimes (SC) 497 ; 2021 8 Supreme 614 in the case of Sunil Todi & others V/s. State of Gujarat and another.
b) ILR 2006 KAR 234 in the case of Dinesh Harakchand Sankla V/s. M/s Kurlon Ltd., and others.
c) 2008 (4) Crimes 108 (Del.) in the case of Shankar Lal Aggarwal V/s. Balram Luthra.
d) AIR 2007 SC 1634 in the case of Raghu Lakshminarayanam V/s. M/s Fine Tubes.
e) 2008(4) Crimes 108 (Del.) 2006 KAR 234 in the case of Shankar Lal Aggarwal V/s. Balram Luthra.
f) AIR 1999 SC 1341 in the case of Iswar Bhai C.Patel Alias Bachu Bhai Patel V/s. Harihar Behera and another.
g) AIR 1999 SC 1441 in the case of Vidhyadhar V/s. Mankikrao and another.
h) AIR 2019 SC 1876 in the case of Rohitbhai Jivanlal Patel V/s. State of Gujarat and another.
i) AIR 2018 SC 3601 in the case of T.P.Murugan V/s. Bojan.
j) AIR 2019 SC 2446 in the case of Bir Singh V/s. Mukesh Kumar.
k) Crl.A.No.123 of 2021 in the case of M/s.Kalamani Tex & another V/s. P.Balasubramanian.
l) 2015 0 Supreme (Ker) 1408 in the case of Sulochana Devi V/s. Baburaj.V. I have gone through the above decisions.
In support of his case, the complainant-1(b) through his counsel has relied upon the decisions as under:
a) 2007 Crl.L.J. 2306 in the case of Rashida Kamaluddin Syed and another V/s. Shaikh Saheblal Mardan (Dead) by L.Rs. And another.
Judgment 12 C.C.No.21995/2016
b) S.B.Crl.Misc.(Petition) No.938/2018 in the case of Amith Kumar V/s. Firm Kapoorchand Bhagchand.
I have gone through the above decisions.
Section 118 (a) of Negotiable Instruments Act provides that:
"Until the contrary is proved, the following presumptions shall be made: (a) of consideration; that every negotiable instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration."
Section 139 of Negotiable Instruments Act provides that:
"It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability."
The above presumptions are rebuttable in nature.
15. In order to rebut the presumption available under Sections 118(a) and 139 of Negotiable Instruments Act, the accused choosen to examine her husband by name Shashidharan as DW.1. In his evidence, he has taken contention that for security of the amount, he has issued the cheques belong to his wife by Judgment 13 C.C.No.21995/2016 putting his signatures to the deceased complainant. The accused does not know about the transaction of this case. The amount given by the deceased complainant's husband is for giving bribery to the BDA for getting site in his name, therefore, Section 138 of Negotiable Instruments Act does not attract to the accused. Hence, he prayed for dismissal of the case.
16. The PW.1 during the course of cross-examination, has deposed that:
"ನಮಮ್ಮ ತತಂದದೆಯವರರು ಕದೆಕೊಟಟತಂತಹ ರಕೊ.25 ಲಕ್ಷ ಹಣ ಬಿಡಿಎ ಸದೆಸೈಟನರುನ ಪಡದೆದರುಕದೆಕೊಳಳ್ಳಲರು ಕದೆಕೊಟಟ ಲತಂಚದ ಹಣ ಇರರುತತ್ತದದೆ ಎತಂದರದೆ ಸರಿಯಲಲ."
17. On carefully reading the above testimony of PW.1, it appears that the accused has received the amount of Rs.25 lakhs from A.M.S.Kannan, who is the father of complainant-1(a) & 1(b). The contention of accused is that the said amount was given to give bribery for getting stray site from BDA in the name A.M.S.Kannan, but there is no materials on behalf of accused on record to believe the said contention.
18. In the reply notice, the accused has not stated that the father of the complainant-1(a) and 1(b) had given Rs.25 lakhs to give bribery for getting stray site from the BDA in the name of A.M.S.Kannan. The said reply notice given by the accused Judgment 14 C.C.No.21995/2016 through her counsel is earlier document of this case. It is the best proof, if really she has taken amount of Rs.25 lakhs from the father of complainant-1(a) and 1(b) for giving bribery, what prevented her to say about this in her reply notice to believe her contention. Therefore, it shows that to escape from the liability of payment of cheques amount to the complainant, she has taken such type of new contention while cross-examining the PW.1.
19. In the entire cross-examination of PW.1, the accused has not denied the signature appears on Exs.P1 and P2-cheques as not belong to her. Further, the alleged cheques were not returned from the bank as endorsement that the signatures appears on cheques are differs and not matched with the signatures of accused. On perusal of the said documents, it discloses that the said cheques were returned as 'payment stopped by drawer'.
20. In the present case, the accused has examined her husband as DW.1. In his evidence, the DW.1 has taken new contention that he put signatures on the cheques and has given to the deceased complainant for security of the amount. But he did not explain, what prevented him to say about this fact in the reply notice. I have perused the reply notice issued by the accused, no where in the reply notice the accused stated that her husband Judgment 15 C.C.No.21995/2016 signed on Exs.P1 and P2 cheques. Therefore, the accused cannot say that she has not issued the cheques for discharge of legally recoverable debt. The new contention taken by the DW.1 in his evidence at the 1st time regarding taking of amount for giving bribery is not helpful to the accused to disbelieve the case of complainant.
It is relevant to cite the Criminal Appeal Nos.1269-1270 Of 2021 in the case of Sripati Singh (since deceased) through his son Gaurav Singh V/s. The State of Jharkhand and Another and another decision 2021 4 Crimes (SC) 497 in the case of Sunil Todi and others V/s. State of Gujarat and another, wherein the Hon'ble Apex Court observed that the dishonour of a cheque which is issued as a security can attract offence under Section 138 of the Negotiable Instruments Act, 1881. Therefore, the accused cannot escape from payment of cheques amount by saying that the cheques were given to the deceased complainant only for security and the provision under Section 138 of Negotiable Instruments Act does not attract to the accused. In view of the above dictums, dishonour of cheques which are issued as a security also attracts an offence under Section 138 of Negotiable Instruments Act.
21. In the chief-examination, DW.1 himself stated that:
Judgment 16 C.C.No.21995/2016 "ಶಶಶ.ಎ.ಎತಂ.ಎಸ್. ಕಣಣ್ಣನ್ ರವರರು ನಶಡಿರರುವ ರಕೊ.20,54,000/- ಹಣವವು ಬಿಡಿಎ ಸದೆಸೈಟಿಗದೆ ಕದೆಕೊಡಬದೆಶಕಕಾದತಂತಹ ಪಪೂರರ್ತಿ ಹಣ ಅಲಲ. ರಕೊ.20,54,000/- ಹಣದಲಲ ರಕೊ.6 ಲಕ್ಷ ಮತರುತ್ತ ರಕೊ.4 ಲಕ್ಷ ಹಣವನರುನ ಶಶಶ.ಎ.ಎತಂ.ಎಸ್ ಕಣಣ್ಣನ್ ರವರರು ಸತಂಪಪೂಣರ್ತಿ ಫಫತಂಡದೆಶಷನ್ ಪಕಾಟನರ್ತಿಶರ್ತಿಫ್ ಫರರ್ತಿ ಅಡಿಯಲಲ ನಡದೆಸರುರತ್ತದದ್ದ ಮತಂಡಡ್ಯದಲಲರರುವ ಸಕಾಯ ಕಣಣ್ಣನ ಆಸಸ್ಪತದೆಶಗದೆ ಬತಂಡವಕಾಳವಕಾಗಿ ತದೆಕೊಡಗಿಸಿದದ್ದರರು."
22. The above testimony of DW.1 is a new version taken at the 1st time while deposing before the court. The advocate for accused has not posed questions regarding investment of amount in the Sai Eye Hospital while cross-examining PW.1. In her reply notice, the accused has not stated the above version. Nothing is prevented her to say about the investment of amount in Sai Eye Hospital in the reply notice. It shows that they have taken false contention that the father of complainant 1(a) and 1(b) invested an amount in the Sai Eye Hospital to escape from the liability of payment of cheques amount to the complainant.
23. In the cross-examination, DW.1 has deposed that:
"ಈ ಸತಂದರರ್ತಿದಲಲ ಪಿರಕಾರ್ತಿದಿ ನತಂ.1(ಎ) ಪರ ವಕಶಲರರು ಸಕಾಕ್ಷಿಗದೆ ನಪಿ.13 ರ ಪಕಾಡ್ಯರಕಾ ನತಂ.6 ರಲಲ ತದೆಕೊಶರಿಸಿ, ಅದರಲಲ ತಲಕಾ ರಕೊ.5 ಲಕ್ಷದ ಮಕೊರರು ಚದೆಕರುಕ್ಕುಗಳರು, ರಕೊ.2 ಲಕ್ಷದ ಒತಂದರು ಚದೆಕರುಕ್ಕು ಮತರುತ್ತ ರಕೊ.3 ಲಕ್ಷದ ಇನದೆಕೊನತಂದರು ಚದೆಕರುಕ್ಕು ಹಶಗದೆ ಒಟರುಟ 5 ಚದೆಕರುಕ್ಕುಗಳನರುನ ಕದೆಕೊಟಿಟರರುತದೆತ್ತಶವದೆ ಎತಂದರು Judgment 17 C.C.No.21995/2016 ಹದೆಶಳಿರರುತದೆತ್ತಶವದೆ ಎತಂದರದೆ ಸರಿ. ಸಕಾಕ್ಷಿ ಮರುತಂದರುವರದೆದರು, ನಕಾವವು 4 ಚದೆಕರುಕ್ಕುಗಳನರುನ ಮಕಾತಶ ಕದೆಕೊಟಿಟರರುತದೆತ್ತಶವದೆ ಎತಂದರು ನರುಡಿಯರುತಕಾತ್ತರದೆ."
24. The above testimony of DW.1 made clear that the accused has issued the alleged cheques for discharge of legally recoverable debt. While cross-examining to PW.1, the accused has not suggested that her husband signed on the alleged cheques. Now the husband of accused came before the court as a witness and has taken new contention that he has put his signatures in the alleged cheques. Admittedly, the DW.1 is a B.Sc., graduate, how he put signatures on the questioned cheques belong to his wife and he courageously deposed before the court that he has put signatures on the alleged cheques and has given the same to the deceased complainant for security. It shows that the accused and her husband colluded with each other and they have taken such type of new contention. Immediately after issuing of cheques, they have given stop payment application to the bank. It is made clear that the accused and her husband are having intention not to give cheques amount to the complainant No.1(a) and 1(b). Before giving the stop payment application to the bank, what prevented them to ask for returning of cheques. There is no explanation in this regard. It shows that Judgment 18 C.C.No.21995/2016 they have taken false contention to escape from the liability of payment of cheques amount.
25. The learned counsel for accused has argued that the amount was given by the father of complainant No.1(a) and 1(b) to give bribery for getting stray site in BDA, the contract of the parties is opposed to public policy, hence, the case of complainant is not maintainable. In support of his arguments, he relied upon the decision reported in 1991 AIR SCW 874 in the case of Gurmukh Singh V/s Amar Singh , wherein, the Hon'ble Apex observed that "if the contract is opposed to public policy and such contract are void". But in the present case, the accused has stated that the amount was received by her husband from the father of complainant No.1(a) and 1(b) to give bribery. This contention was not taken in her reply notice. Therefore, on relying such new contention, it cannot be said that the transaction is taken place in between accused and father of complainant No.1(a) and 1(b) are void. Further more there is no contract between accused and father of complainant No.1(a) and 1(b) regarding getting site in their names by giving bribery. Therefore, the above contention will not come to the assistance of accused to disbelieve the case of complainant.
Judgment 19 C.C.No.21995/2016 Further in support of defence of accused, the learned counsel for accused has relied upon decision reported in (2010) 11 SCC 441 in the case of Rangappa V/s Sri Mohan, wherein, the Hon'ble Apex observed that:
"Presumption mandated by Section 139 includes a presumption that there exists a legally enforceable debt or liability. However, such presumption is rebuttable in nature'. In the present case on hand, this court has given sufficient opportunity to the accused to rebut the presumption, the accused has examined her husband and cross-examined the PW.1 through her counsel. But no where in the cross-examination, the complainant admitted that accused has issued cheques only for security, not for legally enforceable debt.
26. The learned counsel for accused has further argued that the accused cannot be required to step in to witness box. She may discharge her burden on the basis of material already brought on record. In support of his arguments, he has relied upon the decision reported in AIR 2008 SC 1325 in the case of Krishna Janardhan Bhat V/s Dattatraya G.Hegde, wherein the Hon'ble Apex Court observed that:
"Ss. 138, 139 - Dishonour of cheque - Defence - Proof - Accused not required required to step in to witness box - He Judgment 20 C.C.No.21995/2016 may discharge his burden on basis of materials already brought on record - Question whether statutory presumption rebutted or not - Must be determined in view of other evidence on record."
No doubt, it is true that the accused can prove her case on the materials available on record. But the materials on record do not speak that the accused has not issued the cheques for discharge of legally recoverable debt.
27. The learned counsel for accused has further argued that the sister of complainant No.1(a) and 1(b) is not made as party in the present case. Therefore, without impleading her as a party in the present case, the present case is not maintainable and in support his arguments, he relied upon the decision reported in AIR 1965 SC 271 in the case of Kanakarathanammal V/s Loganatha Mudaliar and another, wherein the Hon'ble Apex Court observed that:
"The property purchased by wife with money gifted by husband - Suit by daughter to recover property from beneficiary under will of father - Brothers not impleaded in suit - Suit is incompetent for non-joinder of necessary parties".
28. I have gone through the above decision, it is pertaining to the civil case. In the present case, the accused has not produced any authorities before the court to prove that in criminal Judgment 21 C.C.No.21995/2016 cases like Section 138 of Negotiable Instruments Act without impleading all the legal heirs of deceased complainant, the complaint is not maintainable. Therefore, only on the ground that the sister of complainant No.1(a) and 1(b) is not made as a party in the present case, it cannot be said that the complaint is not maintainable.
29. In the present case on hand, there is no cogent and convenience materials on behalf of accused to believe her version that she has not issued the Exs.P1 and P2-cheques in favour of deceased complainant for discharge of legally recoverable debt. If at all, the accused has not issued the said cheques to the deceased complainant for any debt or liability, then accused could not have kept silent without taking any action against the deceased complainant. Therefore, this court has not other go then to accept the evidence of PW.1 that the questioned cheques were issued by the accused for discharge of existence of legally recoverable debt. Thus the accused has failed to rebut the presumption available under Section 118(a) and 139 of Negotiable Instruments Act in favour of complainant. Thereby, the PW.1 proved his contention, but accused without any base took bald and baseless contention.
Judgment 22 C.C.No.21995/2016
30. On overall appraisal of the materials available on record, it is the consider opinion of this court that the accused has failed to discharge initial burden to rebut the statutory presumption as well as the facts and circumstances placed by the original deceased complainant in the present case. Thereby, the complainant 1(a) and 1(b) have proved the guilt of the accused that the accused is liable to pay the amount covered under the Exs.P1 and P2- cheques. There is no substance in the probable defence of the accused, whereas the complainant 1(a) and 1(b) have discharged their 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 that it is a fit case to convict the accused.
31. Therefore, from the perusal of oral and documentary evidence placed on record it reveals that complainant 1(a) and 1(b) have made out their case and accused has failed to rebut the presumptions arisen in favour of complainant. Thus complainant 1(a) and 1(b) have proved that accused has committed an offence punishable under Section 138 of Negotiable Instruments Act beyond all reasonable doubt. Hence, in view of the above said reasons, I hold point No.1 in the Affirmative.
Judgment 23 C.C.No.21995/2016
32. Point No.2: In view of my findings on point No.1, I proceed to pass the following:
ORDER 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 total fine of Rs.10,20,000/-.
Out of the said fine amount, sum of Rs.10,15,000/- shall be payable to the complainant 1(a) and 1(b) as compensation as per Section 357 of Cr.P.C. Remaining amount of Rs.5,000/- shall be payable to the state as fine amount.
In default of payment of fine amount, the accused shall under go simple imprisonment for 01 (One) Year.
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 in free of cost.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 13 th day of April - 2022) (N.K.SALAMANTAPI) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 24 C.C.No.21995/2016
ANNEXURE
List of Witnesses examined on behalf of Complainant:
PW-1 : S.Raghavendra List of Exhibits marked on behalf of Complainant:
Exs.P1 & P2 : Original Cheques (2 Nos.) Exs.P1(a) & P2(a) : Signatures Exs.P3 & P4 : Bank endorsements Ex.P5 : Office copy of legal notice Exs.P6 & P7 : Postal receipts Ex.P8 : Postal acknowledgment card Ex.P9 : CC of detailed track events Ex.P10 : CC of reply notice dtd:27.04.2016 Ex.P11 : CC of bank challan counter foils Ex.P12 : CC of bank account passbook Ex.P13 : Copy of reply notice dated 27.04.2016 Ex.P13(a) : Some relevant entries at Ex.P13
List of Witnesses examined on behalf of the defence:
DW.1 : Shashidharan List of Exhibits marked on behalf of defence:
- Nil -
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 25 C.C.No.21995/2016 13.04.2022. Comp - Accd - For Judgment
Judgment pronounced in the open court vide separate order.
***** ORDER 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 total fine of Rs.10,20,000/-.
Out of the said fine amount, sum of Rs.10,15,000/- shall be payable to the complainant-1(a) and 1(b) as compensation as per Section 357 of Cr.P.C. Remaining amount of Rs.5,000/- shall be payable to the state as fine amount.
In default of payment of fine amount, the accused shall under go simple imprisonment for 01 (One) Year.
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 in free of cost.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 26 C.C.No.21995/2016 Later, the convictee's counsel filed application Under Section 389(3) of Cr.P.C seeking for suspend the sentence for the reasons stated in the application.
Heard.
In the present case, the judgment was pronounced and convicted the accused. In view of the same, the convictee's counsel has prayed that to suspend the sentence by appeal period.
For the reasons stated in the application, for the limited period of prefer appeal only, the application filed by the accused's counsel under Section 389(3) of Cr.P.C. is hereby partly allowed and sentence is suspended till appeal period only.
The convictee is hereby directed to
execute bond for fine amount of
Rs.10,20,000/.
XXIII ACMM, Bengaluru.