Bangalore District Court
Mr.Gowda Puneeth Najunda vs Mrs. Venkatamma on 23 January, 2023
KABC0C0171872019
IN THE COURT OF XXXIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL UNIT, BENGALURU. (ACMM34)
PRESENT: Smt.PARVEEN A BANKAPUR,B.Com.LLB.
XXXIV ADDL. CHIEF METROPOLITAN
MAGISTRATE,
Dated : This the 23rd day of January, 2023.
C.C.No.54677/2019
COMPLAINANT : Mr.Gowda Puneeth Najunda,
Aged about 30 years,
S/o. Nanjunda,
R/at Padavala Chittanahalli Village,
Doddabala Post, Kasaba Hobli,
Nagamangala Taluk,
Mandya District.
(By Mr. R. Renuka Rprasad and
Babu Reddy - Advocate)
V/s
ACCUSED : Mrs. Venkatamma,
Aged about 60 years,
R/at Bonnappa Colony,
2nd Cross, Near Om Shakthi Temple,
Yamaluru, HAL Post,
Benga
luru - 560 037.
(By Mr. K.V. Girish - Advocate)
1 Date of Commencement of 27.02.2019
offence
2 Date of report of offence 12.07.2019
3 Presence of accused
3a. Before the Court 17.01.2020
3b. Released on bail 17.01.2020
4 Name of the Complainant Mr.Gowda Puneeth Najunda
5 Date of recording of 12.07.2019
evidence
2 C.C.No.54677/2019
6 Date of closure of evidence 24.11.2022
7 Offences alleged U/s 138 of the Negotiable
Instruments Act.
8 Opinion of Judge Accused is found guilty.
JUDGEMENT
The Private Complaint filed by the Complainant under Section 200 of Cr.P.C against the accused alleging that she has committed the offence punishable under Section 138 of Negotiable Instruments Act.
2. The brief facts of the complaint are as follows:
The complainant submits that, the Accused is his neighbour and well known to him for the past several years.
During the first week of July 2018 the Accused approached him for a hand loan of Rs.2.5 lakhs to meet her family legal necessities and as per her request, he paid Rs.2.5 lakhs to the Accused on 10.7.2018. At that time the Accused had promised and assured him to repay the said loan amount within a period of 6 months. After completion of stipulated period of six moths, on several repeated requests and demands made by him, the Accused issued a Cheque bearing No.059675 dtd.27.2.2019 for Rs.2,50,000/ drawn on Canara Bank, Marathahalli branch, Bengaluru towards discharge of her 3 C.C.No.54677/2019 liability with an assurance that the same would be honoured on its presentation on the due date.
It is further submitted by the Complainant that believing the assurance of the Accused, he presented the said cheque through his banker i.e., Vijaya Bank, Marathahalli branch, Bengaluru for realization on 29.4.2019. But the said cheque was returned unpaid for the reason "Insufficient funds" with an endorsement dtd.30.4.2019. On receipt of the bank endorsement, he intimated the fact of dishonour of the Cheque, but the Accused did not bother to repay the hand loan. Finally, the Complainant got issued demand notice through RPAD on 30.5.2019 through his counsel to the Accused. The said notice was served to the Accused on 31.05.2019. Inspite of receipt of legal notice, she has neither paid the Cheque amount nor replied to the notice. Therefore, the contention of the Complainant that the accused deliberately issued the Cheque in favour of the Complainant knowing the fact of insufficient funds in her account and thereby committed an offence punishable u/Sec.138 of N.I.Act. Hence, the Complainant has 4 C.C.No.54677/2019 filed the present complaint against the Accused for the offence punishable u/Sec.138 of N.I. Act.
3. Based on the complaint, the sworn statement affidavit, and documents etc., the court took cognizance of an offence punishable Under Section.138 of N.I. Act by following the guidelines of Apex Court issued in Indian Bank Association case and ordered to be registered a criminal case against the accused for the offence punishable Under Section 138 of N.I. Act.
4. After issuance of summons, accused appeared before the court and enlarged herself on bail. Plea was recorded, read over and explained to the accused, who pleads not guilty and claims to be tried. Hence, the case is posted for complainant's evidence.
5. The Complainant got examined himself as PW1 and got marked documents Ex.P.1 to Ex.P.5 and closed his side.
6. Accused was examined U/S 313 of Cr.P.C.
Incriminating evidence appearing in the complainant's evidence was read over and explained to the accused who denies the 5 C.C.No.54677/2019 same. The Accused examined herself as DW1 and got marked document Ex.D1 and closed her side.
7. Heard both counsels at length in great detail. In addition to the oral arguments, the learned Counsel for the Accused has also submitted written arguments.
8. Upon hearing the arguments and on perusal of the materials placed on record, the following points arise for my consideration.
1) Whether complainant proves beyond all reasonable doubts that accused in discharge of legally recoverable debt has issued a Cheque No.059675 dtd.27.2.2019 for Rs.2,50,000/ drawn on Canara Bank, Marathahalli branch, Bengaluru in favour of the complainant which came to be dishonoured with an endorsement "funds insufficient" on 30.4.2019 and in spite of service of notice accused has not paid the Cheque amount and thereby committed an offence under Section 138 of N.I.Act?
2) What Order?
9. My findings on the above points is:
Point No.1: In the Affirmative 6 C.C.No.54677/2019 Point No.2: As per final order for the following:
REASONS Point No.1:
10. Existence of legally recoverable debt is a sine qua non for prosecuting the case under Section 138 of Negotiable Instruments Act. For convenient purpose the essential ingredients to constitute offence under section 138 of N.I.Act is summarized as below:
(i) That there must be a legally enforceable debt.
(ii) That the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes the legally enforceable debt.
(iii)That the cheque so issued had been returned due to "insufficient funds".
11. It is the core contention of the complainant that, Accused is the neighbour of the Complainant and well acquainted to the Complainant for the past several years, during the first week of July 2018, the Accused had approached the Complainant for handloan of Rs.2,50,000/ to meet her family necessity, as per the request of the Accused, 7 C.C.No.54677/2019 the Complainant had paid Rs.2,50,000/ on 10.7.2018, and at that time, the Accused had promised and assured the Complainant that, the Accused will repay the said amount within six months. It is further submitted that, on several requests and demands, finally towards discharge of her liability, the Accused had issued a Cheque for Rs.2,50,000/ on 27.2.2019 in favour of Complainant, which is dishonoured on 30.4.2019 with reason "funds insufficient". It is further submitted that, thereafter, the Complainant had issued legal notice on 30.5.2019 which was duly served upon the Accused on 31.5.2019, inspite of service of notice, the Accused did not pay the Cheque amount to the Complainant nor replied to the legal notice. Therefore, the Complainant filed complaint against he Accused for the offence punishable u/Sec.138 of N.I. Act.
12. In order to bring home the guilt of the accused, complainant has examined himself as PW1 and reiterated the contents of complaint in his examinationinchief. He has also placed the original Cheque bearing No.059675 at Ex.P.1, Bank endorsement at Ex.P2, office copy of legal notice issued by the 8 C.C.No.54677/2019 Complainant to the Accused on 30.5.2019 at Ex.P3, Postal receipt at Ex.P4, postal acknowledgement at Ex.P.5,
13. The documents produced by the complainant of course established that complainant meets out the procedural requirements of Section 138 of Negotiable Instrument Act, but it is to be considered whether all these documents establish the offence committed by the accused.
14. The Negotiable Instruments Act raises two presumptions. One contained in Section 118 and the other in Sec. 139 thereof. For the sake of convenience Sec 118(1) of the N.I. Act is extracted here below:
118. Presumptions as to negotiable Instruments 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.
1. To (g) . . . . . . . . . . . .
9 C.C.No.54677/2019
Provided that where the instrument has been obtained from its lawful owner, or from an person in lawful custody thereof, by means of an offence of fraud, or has been obtained from the maker or acceptor thereof by means of an offence of fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him".
15. Further Section 139 of the Negotiable Instruments Act reads as under:
"139, Presumption in favour of holder. 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."
Scope and ambit and function of the presumption U/s 118(a) and Sec 139 of NI Act came to be considered by the Hon'ble Apex Court of Indian in Krishna Janardhan Bhat Vs Dattatraya G.Hegde (2008 AIAR (Criminal 151) The Supreme Court has laid down the law in the following phraseology.
"D Negotiable Instruments Act 1881, Secs 139, 138--Presumption undersame arises in regard to second aspect of the matter provided under Sec 138-- Existence of legally enforceable debt is not a matter of presumption under Sec 139 It merely raises presumption in favour of a holder of the cheque that 10 C.C.No.54677/2019 the same has been issued for discharge of any debt or other liability - Merely an application of presumption contemplated under Section 139 of N.I.Act should not lead to injustice or mistaken conviction."
16. Further, said decision was followed by Hon'ble High Court of Karnataka in Kempanarasimhaiah Vs P.Rangaraju & Others (2008 (5) KCCR 3371). Relevant paragraph of the said judgment reads as under: "12. As to the provisions of Sections 138 of N.I.Act, the following principles emerge from the above observations of Hon'ble Supreme Court at para Nos 21, 23, 25, 26 and 34 of its Judgment in the above said case of Krishna Janardhan Bhat Vs Dattatraya G.Hegde, AIR 2008 SC 1325.
(i) Section 139 of the Act merely raises a presumption that the cheque was issued towards discharge in whole or in part in any debt or other liability, which presupposed legally enforceable debt. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability." ( para 21)
(ii) The question as to whether the presumption stood rebutted or not, must be determined keeping in view the other evidences on record. Where the chances of false implication cannot be ruled out, the background fact and the conduct of the parties together with their 11 C.C.No.54677/2019 legal requirements are required to be taken into consideration. (para 26)
(iii) An accused, for discharging the burden of proof placed upon him under a statute, need not examine himself.
He may discharge his burden on the basis of the materials already brought on records (para 23)
(iv) Standard of proof on the part of an accused and that of the prosecution in a criminal case is different. Further more where as prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is " preponderance of probabilities'" ( para 23 & 25)
(v) Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies ( para 25)
(vi) Other important principles of legal jurisprudence, namely presumption of innocence as human rights and the doctrine of reverse burden introduced by Section 139 should be deliberately balanced (para 34)
17. Thus from the observations extracted above, it is clear that presumption Under Section 139 of the N.I,.Act is only to the extent that the cheque was drawn for discharge in full or in part of any debt or other liability and the said presumption do not relate to the existence of legally enforceable debt or liability. Therefore, before drawing the presumption under section 139 of the N.I.Act, it is the duty of the Court to see whether or not the complainant has discharged his initial burden as to existence of 12 C.C.No.54677/2019 legally enforceable debt. No doubt, as per Section 118(a) of the Act, there is a rebuttable presumption that every negotiable instrument, is accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration."
18. Factual matrix of the case is required to be tested on the anvil of principles emerging from the abovereferred decisions.
19. The defence taken by the Accused is that, Accused does not know who Complainant is nor has seen him before, the Accused has not received any loan from the Complainant nor has she issued him the Cheque in question, the Complainant is conman/fraudster who has taken advantage of innocence of the Accused and is perpetuating fraud upon her by filing this complaint. The main defence of the Accused is that, Accused is pensioner and every money in order to withdraw the pension amount, she visited to the bank and except signing her name, Accused does not know to read and write, every month upon the request made by the Accused either bank customers or any other persons in the bank help 13 C.C.No.54677/2019 her to fill the details in the Cheque and thereby help her to encash the Cheque to withdraw the pension amount. In the month of February 2018, an unknown person volunteered to help her to fill up the Cheque in order to withdraw her pension, the unknown person had informed Accused that, the first Cheque she had signed was wasted as her signature was not matching and also informed her that, the Cheque was destroyed and thrown away. Then he asked the Accused to sign another Cheque in order to withdraw the pension, believing him, the Accused had signed another Cheque to encash the pension amount. Now the Accused understand that the unknown person in the guise of helping her, has unauthorizedly retained/stolen one Cheque without her knowledge or consent in order to play fraud upon the Accused.
20. The Complainant got examined himself as PW1. On perusal of entire crossexamination, the Accused has only concentrate in cross examination, on financial capacity and withdrawal of amount from his account and residential address of the Complainant. Further, it is suggested by the learned Counsel for accused that, Complainant has misused the 14 C.C.No.54677/2019 Cheque of the Accused and in the year 2018 when Accused gone to the bank for withdrawal of pension amount, at that time, by saying filling the Cheque of the Accused, the Complainant or his friend have obtained Cheque and misused the same. Except this, the Accused has not suggested in the crossexamination of PW1 about whatever defence taken by her in the examination in chief.
21. The learned Counsel for Accused vehemently argued that, no proof of payment or withdrawal of money to pay the loan to the Accused. It is submits that the Complainant has not adduced evidence to prove that, he has paid a sum of Rs.2,50,000/ to the Accused. It is further submitted that, no prudent man would venture to advance such a huge amount without obtaining a document or receipt or acknowledgement of any kind in order to prove the transaction. Further, it is argued by the learned Counsel for accused that, in the cross examination PW1 has made a glaring contradiction in his crossexamination by stating that he had advanced the hand loan to the Accused by withdrawing the money from his bank and paid the same in 3 or 4 installments.
15 C.C.No.54677/2019
22. On perusal of crossexamination PW1 stated that, Rs.2,50,000/ were withdrawn by him in 4 times, about Rs.25,000/ and Rs.30,000/ he has drawn. It is pertaining to note that, Complainant is working as a Pest Control in Supernova Pest Control Company and earning Rs.40,000/ salary per month. In the examinationinchief Complainant stated that, Accused is his neighbour and well known to him for the past several years and during the first week of July 2018 the Accused had approached him for handloan of Rs.2,50,000/ to meet her family necessity. The learned Counsel for accused has submits that, there is a no proof of withdrawal of amount from him from his bank account, therefore, the Complainant has not given any loan to the Accused. In this regard, the learned Counsel for accused has relied judgement of Hon'ble Hon'ble High Court of Karnataka in Cri. Appeal No.296 of 2018 dtd.20.7.2022 wherein the Honble Hig Court observed as under;
"It is relevant to see that, the loan of Rs.2,50,000/ is said to have been advanced to the Accused in the month of September 2012. There is no documentary evidence corroborating the claim of the Complainant that, such amount was advanced 16 C.C.No.54677/2019 in the month of September 2012. The Cheque in question was not received by the Complainant at the time of advancing the loan. The Trial Court has observed that, there is neither any pleading nor proof in this regard by the Complainant, which goes to show that, his case is highly doubtful, since no prudent man would venture to advance such a huge loan without any document. According to the Accused, the Complainant has tampered the Cheque in dispute by inserting the digit '2' before the digit '50,000'. The Trial Court has observed that there is absolutely no crossexamination of the Accused, in this regard, by the counsel for Complainant. In the crossexamination, PW1 has stated that, the Accused had already filled up the Cheque and handed over to her. She has admitted that there is a difference of ink in Ex.P1 with regard to the signature. Considering all these aspects, the Trial Court has acquitted the Accused holding that the Complainant has failed to prove his case beyond reasonable doubt, while the Accused has probabilized his defence.
I see no illegality in the order of the acquittal passed by the Trial Court, no grounds are made out to interfere with the impugned judgement.17 C.C.No.54677/2019
23. Further, it is defence of the Accused that, the Cheque would not have been issued on 27.2.2019. Accused had produced Ex.D1. The learned Counsel for accused vehemently argued that, Ex.P1 Cheque belongs to the Cheque book with the Cheque No.59671 to 59680 which was exhausted between the period from 10.10.2017 to 9.4.2018 as reflected in Ex.D1. It is pertaining to note that, Ex.P1 is issued on 27022019. On perusal of Ex.D1 the series of cheques numbers 59..... are ended till April 2018 and thereafter, cheques numbers 43.... are started.
24. As per the pleading and evidence of the complainant, the cheque was issued on 27022019. The only defence taken by the accused is that, the complainant was payed fraud upon her, by taking her cheque fraudulently. The accused has not known the accused and her came to know the complainant after receiving the summons from the court. It is pertaining to note that, the notice issued by the complainant is received by the accused personally. Ex.P5 is the postal acknowledgment, which shows that the accused has been received the notice personally. If the complainant taken the questioned cheque 18 C.C.No.54677/2019 fraudulently from the accused, why accused has not take action against the complainant for playing fraud on her. Further accused has not replied to the notice of the complainant. Even after receiving the summons from the court about this case, the accused has not taken any action against the complainant and also not taken defence in the cross examination of PW1 about fraud played by the complainant on her. In her evidence only the accused taken contention that, the complainant has taken the questioned cheque fraudulently from her.
25. It is submission of the accused is that, she not known the complainant before receiving of the court summon. It is contention of the accused is that, unknown person informed her that the questioned cheque which she had signed was wasted as her signature was not matching and also informed her that the cheque was destroyed and thrown away. If presumed that complainant is unknown person to the accused and he was/is not bank employee, then how could he know about her signature was not matched. Further, the complainant has know the full address of the accused I.e., he 19 C.C.No.54677/2019 was sent the notice to the accused in correct address and also mentioned correct address in the cause title of the complaint. Further, in the crossexamination he stated about the family of the accused. Hence, the defence taken by the accused that, she did not know the complainant is not acceptable.
26. The Accused has not denied her signature on the Cheque. Further, the Accused has not taken any action for misusing of Cheque or playing fraud on her. Therefore, it appears that the defence taken by the Accused is false. In this regard the learned Counsel for complainant relied 2010 (11) Supreme Court cases 441 in the case of Rangappa V/s. Sri Mohan wherein the Hon'ble Supreme Court held that ;
"Negotiable Instrument Act, Sec.138, 139 Dishonour of Cheque - Conviction confirmed - Appellant/Accused, drawer of Cheque in question, neither raising a probable defence nor able to contest existence of a legally enforceable debt or liability - High Court reversing his acquittal - Sustainability - Held, complaint discloses prima facie existence of a legally enforceable debt or liability - Since appellant admitted that signature on the Cheque was his, statutory presumption u/Sec.139 comes into play and same was not rebutted even with regard to the materials submitted 20 C.C.No.54677/2019 by Complainant - Appellant not able to prove "lost Cheque" theory - Apart from not raising a probable defence, appellant was also not able to contest the existence of a legally enforceable debt or liability - Hence, his conviction by High Court, held, proper."
27. Therefore, for above discussion, it has to be presumed that the cheque in question was issued by the accused to discharge the legally recoverable debt or liability. The accused can place rebuttal evidence so as to show that the cheque was not issued for consideration. As appreciated supra, accused has failed to put acceptable and satisfactory evidence to probabilise the defence. Therefore, there is no question of saying that the cheque was not issued for legal liability.
28. The accused has not denied the signature on Ex.P1. Therefore, complainant has discharged his initial onus laid on him. When he has discharged his initial onus, it raises presumption U/s 118(a) and 139 of Negotiable Instruments Act. Accused has failed to rebut the presumption either in cross examining PW1 or in her evidence.
21 C.C.No.54677/2019
29. Further, it is also not disputed that cheque Ex.P.1 bears her signature and it pertains to her Account maintained at Canara Bank, Marathahalli Branch, Bengaluru. The accused has taken defence that the complainant has played fraud on her and taken the questioned cheque fraudulently from her and it has been misused in this case by the complainant by filing false complaint. Therefore, let me appreciate the oral and documentary evidence adduced by both the parties in the light of the facts admitted and the defence taken by the accused as above.
30. Therefore, considering the fact and circumstances of the case and oral and documentary evidence place by both parties, Complainant has discharged his initial onus laid on him. When he has discharged his initial onus, it raises presumption U/s118(a) and 139 of Negotiable Instrument Act. Accused has failed to rebut the presumption either by cross examination of PW1 or by her evidence. Since Accused has admitted his signature on the Cheque and said Cheque was dishonoured. Hence, he is committed offence punishable u/Sec.138 of N.I. Act.
22 C.C.No.54677/2019
31. So, far as sentence and compensation is concern, an offence punishable under section 138 of N.I. Act, is a civil wrong and compensatory in nature, punitive is secondary, considering, the above settled principal of law with facts and circumstances of the case, which clearly reveals that, the complainant gave hand loan to the accused and towards repayment of loan amount, cheque in question of issued by the accused to the complainant, therefore, it is issued for legally recoverable debt, therefore considering the nature of transaction, duration of pendency, litigation expenses, I am opinion that, if sentence of Fine of Rs.2,95,000/ (Rupees Two Lakhs and Ninetyfive Thousand only) is imposed that would meet the ends of justice, accordingly, the accused is hereby sentenced to pay a fine of Rs.2,95,000/ (Rupees Two Lakhs and Ninetyfive Thousand only), out of that, the complainant is entitled for sum of Rs.2,90,000/ (Rupees Two Lakhs and Ninety Thousand only) as a compensation as per Sec.357(1) of Cr.P.C., remaining amount of Rs.5,000/, is to be appropriated to the state, in case of default the accused shall under go simple imprisonment for a period of 6 months. Accordingly, the Point No.1 is answered in Affirmative.
23 C.C.No.54677/2019
32. POINT No.2 : In view of discussion held in Point No.1, I proceed to pass the following :
ORDER Acting U/S 255(2) of Cr.P.C., the accused is convicted for the offence punishable Under Section 138 of Negotiable Instrument Act.
Accused is sentenced to pay fine of Rs.2,95,000/ (Rupees Two Lakhs and Ninety five Thousand only) in default to undergo simple imprisonment for 6 months. Further, it is made clear that out of fine amount, Rs.2,90,000/ (Rupees Two Lakhs and Ninety Thousand only) is to be paid to the complainant as compensation as per the provision U/Sec.357(1) of Cr.P.C. and Rs.5,000/ is ordered to be remitted to the State.
Bail bond stands cancelled.
Supply the free copy of this judgement to the Accused forthwith.
(Dictated to the stenographer, transcribed by her, corrected by me and then pronounced in the open court on this 23rd January, 2023) (PARVEEN A BANKAPUR) XXXIV ACMM, BENGALURU.
24 C.C.No.54677/2019ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 Mr.Gowda Puneeth Najunda
2. Documents marked on behalf of complainant:
Ex.P.1 Cheque Ex.P.2 Bank endorsement Ex.P.3 Office copy of Legal Notice Ex.P.4 Postal receipt Ex.P.5 Postal receipt Ex.P.5 Postal acknowledgement
3. Witnesses examined on behalf of Accused :
D.W.1 Mrs. Venkatamma
4. Documents marked on behalf of Accused:
Ex.D.1 Account statement
(PARVEEN A BANKAPUR)
XXXIV ACMM, BENGALURU.