Bangalore District Court
Lakshmidevi.B vs C.Aravindan on 1 December, 2020
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 1st day of December - 2020
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.18147/2017
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Lakshmidevi.B,
W/o.Dhanaraju.R,
Aged about 51 years,
R/at No.26, 1st B Cross,
SVG Nagar, Bengaluru-72.
(Rep. by Sri.V.K.Ramesha, Adv.)
V/S
Accused : C.Aravindan,
S/o.Chinnathambi,
Aged about 63 years,
R/at. No.11, 1st Floor,
1st B Cross, SVG Nagar,
Bengaluru-72.
(Rep.by Sri.G.B.Ananda, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Convicted.
DATE OF ORDER : 01.12.2020.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
Judgment 2 C.C.No.18147/2017
JUDGMENT
The complainant has presented the instant complaint against the accused on 09.06.207 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheque of Rs.5 lakhs.
2. The facts given raised to this private complaint are as follows:
The complainant has submitted that, accused is residing in the cause title address as permanent resident along with his family and he has a retired Central Government employee of Priyadarshini Hand Looms.
The complainant has averred that, complainant is also a permanent resident of Bengaluru and residing in the cause title address along with her family and she is the absolute owner of the said house property. The accused and complainant's husband are best friends since from 8 years and both the family members are well known to each other and they are also good neighbours. The accused wife is also best friend of the complainant, since than and had good relationship with the complainant and her family members.
Judgment 3 C.C.No.18147/2017
The complainant has further alleged that, in that
acquaintance, the accused and her family members, number of times from the complainant and her husband taken hand loans to meet out the immediate family needs and financial requirements. The accused had returned the amount to the complainant and her husband without any default. The accused have also refund the amount to the complainant and her husband for their immediate business needs and they are returned the amount to the accused in-time without any default.
The complainant has further contended that, the accused had approached the complainant and her husband on 15.03.2016 and requested them for sum of Rs.15 lakhs as hand loan for a period of 6 months to pay sale consideration amount for registering the property in the name of accused situated near J.P.Nagar, Bengaluru. Further the accused also revealed that, he applied for the bank loan to register the said property, due to some reasons bank loan was not approved in-time and it will take 6 months and assured to repay the said loan to complainant and her husband after approval of the loan from the bank immediately, without any default. Further he reveled the complainant that, the amount is very much require immediately that, property is to be register immediately in his name, as the property owner was Judgment 4 C.C.No.18147/2017 demanding to register the same immediately, otherwise he would sell the property to the 3rd parties. The complainant and her husband earlier refused to give the said loan amount and the accused was assured them that, he will pay the interest at 2% p.m. The complainant has further averred and alleged that, the accused and his wife again approached the complainant and her husband on 20.03.2016 and repeatedly requested them for the loan of Rs.15 lakhs. Finally, considering the request of the accused, they have agreed to pay the amount of Rs.10 lakhs and accused also agreed to pay interest at the rate of 2% p.m., but the complainant was refused to take the same as they have maintained good acquaintance with the complainant and her husband.
The complainant has further contended that, finally on considering the repeated requests made by the accused and his need for register the property, the complainant and her husband mutually agreed to pay Rs.10 lakhs such as, Rs.5 lakhs each to the accused. Accordingly, sum of Rs.5 lakhs each have been paid by the complainant and her husband to the accused on 28.03.2016 by way of cash in-front of witnesses and accused was Judgment 5 C.C.No.18147/2017 undertaken to repay the said loan with interest at 1% p.m. within 6 months.
The complainant has further alleged that, after the amount received from the complainant, accused had paid interest till July, 2016 for the period of 4 months. Thereafter, he failed to pay interest to the complainant under the one or other reasons postponing by gave false reasons. The complainant has requested the accused to pay interest, but he told them, he will arranged the interest amount and will be paid as early as possible, but failed to keep up his words, from August, 2016 onwards the accused is a defaulter in paying interest.
The complainant has further contended that, after 6 months from the date of receipt of the loan amount, on 04.10.2016, the complainant had requested the accused to pay the principal amount along with interest thereon. The accused was told her that, loan was not approved from the bank and requested for another period of 6 months to arrange the said amount, but the complainant had refused to grant further time. Finally the complainant had agreed for the same and for the assurance the accused gave cheque bearing No.681805 dated:03.04.2017 drawn on Central Bank of India, Kamalanagar Extension, Judgment 6 C.C.No.18147/2017 Bengaluru, in favour of complainant on the assurance that, would honour the same on the given date.
The complainant has further alleged that, on the assurance of the accused, she had presented the said cheque for encashment through her banker viz., Allahabad Bank Bengaluru, Vijayanagar Branch, Bengaluru. On 11.04.2017 as per bank memo, she got the intimation that, the said cheque came to be dishonoured for the reasons "Kindly Contact Drawer Drawee Bank and Please Present Again".
The complainant has further alleged that, she brought the said fact into the notice of the accused, as to return of the said cheque, he had further requested the complainant to re-present it on 18.04.2017. Accordingly, on the assurance of the accused, she has re-presented the said cheque for encashment, again on 18.04.2017 through the said banker, the same also as per memo dated:25.04.2017, the said cheque came to be dishonoured for the reasons "Funds Insufficient". Thereafter, on 11.05.2017, she gave legal notice to the accused demanding him to pay the amount covered under the cheque. The same came to be served on accused on 15.05.2017. Despite that, he not paid the amount covered under the cheque nor issued any reply. Though there is Judgment 7 C.C.No.18147/2017 insufficient money in the account of the accused, he gave cheque in order to defraud the complainant. Thereby, he committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
3. 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.
4. In response to the summons, the accused appeared through his counsel and obtained bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to him, wherein, he denied the same and claimed to have the defence.
5. To prove the case of the complainant, she herself choosen to examined as PW.1 and got marked Exs.P1 to P6. The PW.1 was subjected for cross-examination by the advocate for the accused.
6. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein the Judgment 8 C.C.No.18147/2017 accused denied the same and answer given by him was recorded. In support of the defence, the accused himself was examined as DW.1, but not produced any documents in support of his defence. The DW.1 was subjected for cross-examination by the advocate for the complainant. In the cross-examination of DW.1, complainant counsel got confronted 12 documents and same are marked as Exs.P9 to P18.
7. I have heard the arguments of complainant counsel. The accused counsel has not addressed his side arguments. Inspite of given liberty to file his written arguments, he not submitted his written arguments.
8. On going through the rival contentions, based on the substantial evidence available on record, the following points have been arising for determination:
1) Whether the complainant proves beyond the reasonable doubt that, the amount covered under the Ex.P1-cheque is the existence of legally enforceable debt payable by the accused?
2) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?
3) What Order?
9. On appreciation of materials available on record, my findings on the above points are as under:
Judgment 9 C.C.No.18147/2017
Point No.1 : In the Affirmative
Point No.2 : In the Affirmative
Point No.3 : As per final order, for the
following:
REASONS
-: UNDISPUTED FACTS:-
10. The fact that, the residential addresses of the complainant and accused as made mentioned in the cause title addresses in the complaint is not in dispute. The fact that, the complainant is the wife of Dhanaraju.R is not in dispute. The fact that, Smt.Tilakam is the wife of accused herein is not in dispute. The fact that, the accused was the retired employee of Central Government, he was working in Priyadarshini Hand Loom was is not in dispute. The fact that, the wife of accused and complainant herein were close to each other and accordingly, the family of the complainant and accused are also close to each other and used to visit the functions of the respective families also is not in dispute.
The fact that, under the same set up facts as pleaded by the complainant herein, in respect of the lent of loan of Rs.5 lakhs on the same day along with the complainant by her husband Dhanaraju.R, he had filed separate cheque bounce case against Judgment 10 C.C.No.18147/2017 the accused herein in C.C.No.15882/2017 as found in Ex.P7 is not in dispute. The fact that, as per Ex.P8 the husband of the complainant were deposed is not in dispute. The fact that, as per Ex.P9, the accused herein was deposed in the said cheque as DW.1 as found in his affidavit as well as testimony of cross- examination produced as such, is not in dispute. The fact that, the wife of accused by name Smt.Thilakam also got examined in the said case as DW.2 and has produced as per Ex.P10 is not in dispute. The fact that, one more witness Smt.Vasantha also deposed on behalf of accused as per Ex.P11 deposition in the said case is not in dispute. The fact that, against the legal notice issued by the husband of complainant in the said cheque, the very accused herein as per Ex.P12 caused reply on 24.05.2017 is not in dispute.
The fact that, Ex.P13 was the cheque was the subject matter of the case in C.C.No.15882/2017 is not in dispute. The fact that, the case filed by the complainant's husband by name Dhanaraju.R came to be disposed off by way of passing judgment on 05.07.2018 by convicted the accused herein is not in dispute. The fact that, as found in Ex.P15, the complainant was having her own duplex 3 residential house with shops is not in dispute. The fact that, against the judgment passed in C.C.No.15882/2017 the Judgment 11 C.C.No.18147/2017 accused herein had challenged by way of preferring Crl.A.No.1472/2018 before the Hon'ble LXV Addl. City Civil and Sessions Judge, Bengaluru City (CCH-66) is not in dispute. The fact that, the said Criminal Appeal came to be dismissed once again confirmed the judged passed in C.C.No.15882/2017 is not in dispute.
11. POINT NOs.1 and 2: Since both the points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.
The PW.1 to prove her case choosen to examined herself and filed affidavit by reiterating the complaint averments in toto, and produced the documents at Exs.P1 to P6, they are:
a) Ex.P1 is the cheque bearing No.681825 issued by the accused for sum of Rs.5 lakhs dated:03.04.2017, drawn on Central Bank of India, Kamalanagar Extension, Bengaluru.
b) Ex.P1(a) is the alleged signature of accused.
c) Exs.P2 and P3 are the Bank Memos dated:11.04.2017 and 25.04.2017.
d) Ex.P4 is the Legal Notice dated:10.05.2017.
e) Ex.P5 is the Postal receipt.
f) Ex.P6 is the postal acknowledgment card.
Judgment 12 C.C.No.18147/2017
12. The PW.1 was subjected to the cross-examination by the advocate for the accused. In support of her case the complainant through her counsel has produced the citations and relied upon same, they are;
a) AIR 2001 SC 2895
b) ILR 2001 KAR 3399
c) 2006 Crl.L.J.2267
d) ILR 2008 KAR 1883
e) AIR 2019 SC 4003
f) 2019 (5) SCC 418
g) Crl.A.No.271/2020
h) Crl.A.No.636/2019
i) Crl.A.No.1545/2019
j) Crl.A.No.803/2018
k) Crl.A.No.1020/2010
13. In the cross-examination of DW.1, complainant counsel got confronted 12 documents and same are marked as Exs.P9 to P18. They are:
a) Ex.P7 is the certified copy of private complaint filed by one Dhanaraju.R against the accused herein in C.C.No.15882/2017.
b) Ex.P8 is the certified copy of deposition of PW.1 in C.C.No.15882/2017 pertaining to Dhararaju.R, who is the husband of complainant herein.
Judgment 13 C.C.No.18147/2017
c) Ex.P9 is the certified copy of chief-examination affidavit as well as deposition of DW.1 in C.C.No.15882/2017 pertaining to accused herein.
d) Ex.P10 is the certified copy of chief-examination affidavit as well as deposition of DW.2 in C.C.No.15882/2017 pertaining to the wife of accused herein by name Smt.Thilakam.
e) Ex.P11 is the certified copy of chief-examination affidavit as well as deposition of DW.2 in C.C.No.15882/2017 pertaining to the witness by name Smt.Vasantha.
f) Ex.P12 is the certified copy of reply notice dated:24.05.2017 issued by accused herein through his counsel to the complainant counsel in C.C.No.15882/2017.
g) Ex.P13 is the certified copy of cheque bearing No.681807 pertaining to accused therein in C.C.No.15882/2017.
h) Ex.P14 is the certified copy of judgment in C.C.No.15882/2017 on the file of learned XXII ACMM Court, Bengaluru.
i) Ex.P15 is the certified copy of house photograph along with witness list.
j) Ex.P16 is the house photograph pertaining to complainant thereon.
k) Ex.P17 is the certified copy of order sheet in Crl.A.No.1472/2018 and
l) Ex.P18 is the certified copy of judgment in Crl.A.No.1472/2018 on the file of the Hon'ble LXV Addl.City Civil and Sessions Judge, Bengaluru City.
14. After detailed cross-examination done by the advocate for accused to the PW.1, the complainant got closed her side. Thereafter, whatever the incriminating evidence made against the accused was read over and explained to him as required under Judgment 14 C.C.No.18147/2017 Section 313 of Cr.P.C., wherein, he denied the same and gave his statement that, he got received the legal notice from the complainant and about 7 - 8 years back, his wife Smt.Thilakam got obtained loan of Rs.1,70,000/- from Sthree Shakthi Sangha run by the complainant on the security of signed blank cheques of the accused through his wife. The said loan was not cleared by his wife and she gave interest for few months and not borrowed the alleged loan nor issued the Ex.P1-cheque to the complainant herein.
15. In order to prove the defence of the accused, the accused himself choosen to entered into witness box and examined as DW.1 on oath and filed affidavit evidence.
16. No doubt, in this case, the accused was entered into witness box and filed affidavit evidence. The filing of affidavit by the accused in lieu of his probable defence is not opposed by the complainant. Mere because of she not sought permission under Sections 315 and 316 of Cr.P.C., it does not a ground to out-rate reject the probable defence set out by the accused. Mere because Section 145(1) of Negotiable Instruments Act does not expressly permit the accused to filed affidavit evidence, it does not mean that, the court cannot allow the accused to give his Judgment 15 C.C.No.18147/2017 evidence on affidavit. By applying the same analogy, unless there is just and reasonable ground to refuse such permission. There is no express bar on accused to give evidence on affidavit either in the accused or in the court.
In a decision reported in 2006 SCC online, Bombay 703, in a case between Peacock Industries Limited Vidhyadhar and others V/s. Dudhrani Finance Limited Bombay and another . Ratio layout therein was partly firm in a decision reported in (2010) 3 SCC 83, in a case between Mandovi Co-operative Society Ltd., V/s. Nimesh B Takore. Wherein, by citing the decisions reported in KSL and Industries Ltd., case, it was pleased to observed that, the observation made by the Division Bench in KSL and Industries Ltd., case, clearly indicate that, even the accused should be given option to lead her evidence on affidavit. But such request should be made in writing as providing for Section 315(1) of Cr.P.C. Wherein, lordship was pleased observed that, fine no justified reason to refuse permission to the accused to give his evidence on affidavit subject to the provisions contained in Sections 315 and 316 of Cr.P.C.
That apart, in a judgment passed by the Hon'ble High Court of Karnataka dated:13th Day of February 2020 in a case between Judgment 16 C.C.No.18147/2017 Jagadeesh Hiremath and R. Venkatesh in Criminal Appeal No.907 of 2017 A/W Criminal Appeal No.908 of 2017 is pleased to observed that, in view of the orders of this court in Criminal Petition No.9331/2017 C/w Criminal Petition No.9332/2017 dated:
02.07.2019, wherein following the law laid down by the Hon'ble Supreme Court in Indo International Ltd., & Another V/s. State Of Maharasthtra & Another, 2005 Crl.L.J.208, it is held that, " The court dealing with a complaint under Section 138 of the said Act of 1881 had an option to take evidence of the witnesses on the side of the prosecution as well as evidence of the accused and the defence witnesses, if any on affidavit"
17. Wherein, the accused in his affidavit evidence has contended that, he is well conversant with the facts of the case and complainant has filed the present case against him the same does not come within the meaning of Section 138 of Negotiable Instruments Act. She has failed to establish her case.
The accused also contended that, he not borrowed any loan from the complainant and cheque in question was belong to him and complainant was the President of Mahila Sangha, it was functioned in the house of complainant. She conducted certain chit fund among the members of Mahila Sangha, wherein his wife K.Thilagam was the highest bidder of th chit amount in order to Judgment 17 C.C.No.18147/2017 receive chit amount, the complainant had demanded for blank cheque for the security purpose only. In that connection his wife had demanded a blank cheque from the accused for the security purpose, accordingly, he gave to his wife only for said purpose not any other.
The accused has also contended that, complainant is the President of Mahila Sangha, wherein in the said Sangha consists of female members and he being a male person not became the member of the same. Under that back ground the complainant has misused the cheque in question of the accused.
The accused has also further contended that, she is alleged paid loan of Rs.5 lakhs by way of cash to the accused. No prudent man cannot take such huge amount by way of cash without proper security to the loan. Moreover, she does not derive any income of her own. The complainant had misused his cheque even though, there is any legally dischargable debt, she filed the false case case against him. That apart, there is no piece of evidence to show that, there is existing loan between complainant and accused. In the absence of documents, the entire case is baseless and requires to be dismissed.
Judgment 18 C.C.No.18147/2017 The accused has further contended that, he had issued a blank cheque to his wife affixing with his signature without writing its contents. The said cheque is issued by his wife only for the purpose of security and not for any other purpose, the complainant has misused the same only with an intention to make illegal gain for herself and cause wrongful loss to him. In order to cheat the accused and extract money illegally filed the present case with unclean hands. The accused has not purchased the site as alleged by the complainant, but it was allotted to him by the Government of Karnataka with free of cost and to that effect, he produced Hakku Pathra and possession certificate issued by the concern authority. Hence, prayed for dismissal of the present case. The accused though stated producing of allotment letter nothing has been placed no document is marked on his behalf in the present case to prove his probable defence, however he subjected for the cross-examination by the advocate for complainant herein.
18. On going through the rival contentions of the parties, it made clear that, the accused in this case has seriously attack on the claim put forth by the complainant. On going through the materials it discloses, the complainant has brought the present case against the accused based on the questioned cheque at Judgment 19 C.C.No.18147/2017 Ex.P1. Therefore, it is needs to draw the presumption as per Sections 118 and 139 of Negotiable Instruments Act. As per Section 118(g), it shall be presume that, unless the contrary is prove, the holder of the cheque, the complainant received the cheque for discharge of legal liability. This presumption is rebuttable. Accordingly, Sections 139 and 138 of Negotiable Instruments Act, it also requires to presume that, cheque was drawn for discharge of liability of drawer, it is presumption under law. Therefore, it made clear that, by virtue of the above said sections stated, it made clear that, it requires to draw statutory presumption in favour of complainant that, in respect of discharge of existence of legally recoverable debt, the accused got issued the Ex.P1-cheque unless and until contrary prove. Therefore, as per those sections, it made clear that, it is the initial onus on the accused to prove his case based on the principles of 'Preponderance of Probabilities'.
It is require to cite the decision reported in AIR 2010 SCC 1898, in a case between Rangappa V/s Mohan. Wherein, the Hon'ble Apex Court pleased to observe that, the obligation on the prosecution may be discharged with the help of presumption of law or facts unless the accused adduce evidence showing the reasonable probability of non-existence or presumed fact.
Judgment 20 C.C.No.18147/2017 Wherein also it was pleased to observed that, the accused can prove the non-existence of consideration by raising probable defence. If accused is able to discharge the initial onus of proof of showing that, the existing of consideration was improbably or adverse or the same was illegal, the onus would shift to the complainant, who will be obliged to prove it as a matter of fact, and upon its failure to prove would dis-entitle his to grant the relief on the basis of Negotiable Instruments Act. The burden on the accused of proving the non-existence of consideration can either direct or by bringing on record the preponderance of probabilities by referring to the circumstances upon which, he relies could bare denial of passing consideration apparently does not appears to be any defence. Something which is probable has to be brought on record for getting benefit of shifting the onus of proving to the complainant. To disprove the presumption, the accused has to bring on record such facts and circumstances upon the consideration of which the court may either believe that, consideration did not exist or its non-existence was so probable that, a prudent man would, under the circumstances of the case, act upon that, it did not exist. Therefore, it made clear that, the accused need to take the probable defence mere denial is not enough.
Judgment 21 C.C.No.18147/2017 That apart, in a decision reported in ILR 2006 KAR 4672, in a case between J.Ramaraj V/s Hiyaz Khan. Wherein, it was pleased to observed that, mere denial of issuing cheque, whether is sufficient to discharge the initial burden is to be looked into. In that dictum, it was pleased to held that, mere denial of issuing cheques would not be sufficient as it is time and again noted that, once the cheque issued duly signed by the accused, the presumption goes against him as per Section 139 of Negotiable Instruments Act.
19. On going through the provisions referred supra, it made clear that, whereas the presumption must prove that, guilt of accused beyond the reasonable doubt. The standard or proof so as to prove a defence on the part of the accused is 'Preponderance of Probabilities'. Inference of 'Preponderance of Probabilities' can be drawn, not only from the materials brought on record by parties, but also by reference to the circumstances upon which he relies.
20. On going through the above authorities as well as dictums, it made clear that, it is the initial burden on the accused to prove his probable defence in order to rebut the statutory presumption as well as the case put forth by the complainant. In this case it Judgment 22 C.C.No.18147/2017 requires to appreciate the probable evidence furnished by the accused in the present case. The complainant has submitted whatever the legal notice at Ex.P3 got issued by her was served on the accused as per Ex.P6. No doubt, Ex.P6 postal acknowledgment card reflects the signature of accused. But no reply has been given by the accused. Throughout the cross- examination of PW.1 there is no dispute has to service of legal notice as per Ex.P3 to the accused. However, during record 313 of Cr.P.C. statement the accused has categorically admitted by way of given statement as to receipt of legal notice. Even the same was not disputed in his affidavit evidence, thereby, it made clear that, whatever the mandatory requirement in order to file the present case as per Section 138(a) to (c) has been complied by the complainant. It is significant fact to note that, despite the accused got served with legal notice at Ex.P3, if he had any defence or claim of the complainant were to be true definitely, he could have placed his reply at proper stage, but he not choosen to do so. The non reply of legal notice is one of the strong circumstances as to believe that, as the accused has no defence since the contents of demand notice as per Ex.P3 were to be true, the accused not tack any risk to contest the same. The non reply notice is one of the circumstances as to accept the claim of Judgment 23 C.C.No.18147/2017 complainant that, for discharge of existence of legally recoverable debt, the accused got issued the questioned cheque at Ex.P1.
21. That apart, the accused choosen to cross-examine the PW.1. By way of suggestion made to PW.1, the accused had placed his defence. It is significant fact to note that, though accused has protested the claim of complainant that, he had not purchased the site as alleged by the complainant by borrowing the loan and contended that, the said site was allotted by the Government with free of cost, though there is mentioning of production of document, single piece of document has not been placed by the accused to show that, whatever the property he alleged to be purchased was allotted by the Government of Karnataka.
22. That apart, the PW.1 was subjected for cross-examination and she reasserted her contention that, she and the wife of accused were close to each other and accordingly, the families of complainant and accused are closed used to visit their respective functions conducted in their house. Even she stated that, prior to the alleged loan transaction the accused was used to borrow loan from the complainant in between the range of Rs.10,000/- to Rs.1 lakh and while gave such loan she not taken any security Judgment 24 C.C.No.18147/2017 document. She also stated that, since it was old loan she does not remember the date. The accused has suspected the earlier loan transaction as urged by the PW.1, to disbelieve her say as to there was monetary transaction as contended by the complainant nothing has been suggested nor extracted any contradictions to disbelieve the contention of the complainant. Even when she tended for cross-examination, she categorically deposes, on 15.03.2016 the accused came to her sought for the loan of Rs.15 lakhs. The said factum were not denied by the accused by putting any suggestion. Thereafter, PW.1 has categorically deposes that, though he sought for loan of Rs.15 lakhs from the complainant, she has explained that, she and her husband each gave Rs.5 lakhs each in cash to the accused with the denomination of Rs.500/- notes with Rs.50,000/- each bundles with mixture of old and new notes. The PW.1 has mere clarified, she gave the said loan amount in cash to the accused, the same were not denied by the way of any suggestion. Even she has deposed that, how she mobilized the fund. As per her say, her husband was the distributor of Pepsi Cool Drinks and did the said business on obtaining license and he stopped the said business after 2012 for the purpose of starting new Noah Interior business. In the said business she and her children were the directors and still the said Judgment 25 C.C.No.18147/2017 business was going on and also gathered enough income from the said business. She also stated that, she is the income tax assessee and very categorically deposed, she gave her own money to the accused.
23. The PW.1 in her cross-examination has stated that, she and her husband used to kept Rs.20 lakhs to Rs.25 lakhs in home separately along with her children as those money were very much required to pay to the distributors as to got delivery of 5 - 6 loads of lorries of the Pepsi Cool Drinks. In the event of any strike or other compelling circumstances came, she was need that much amount. She also deposed that, though she knew that, that much of amount should not be kept in cash, due to inevitable circumstances, she used to kept the said money in order to pay the huge amount to the dealers. Those evidence led by the PW.1 were not denied, earlier her husband was did the Pepsi Distribution work and later commenced Noah Interior works. The PW.1 also choosen to produce the photographs pertaining to her own building which consists of ground + 3 floors out of which as suggested by the advocate for the complainant to the DW.1 which consists of rented house and shop premises. It indicates the financial capacity of the complainant also. The said financial Judgment 26 C.C.No.18147/2017 capacity though the accused in his affidavit evidence has questioned, but he utterly failed to demonstrate the same.
24. That apart, during the course of cross of PW.1, she was categorically deposed that, while the accused borrow loan from the complainant and her husband for the tune of Rs.5 lakhs each the wife of accused were also present and for the purpose of purchase site at J.P.Nagar,he borrowed the said loan. She stated, she not seen the said property, but her husband saw. In order to show that, the said property were not purchased by the accused, he not taken any such contention, though he contended in his affidavit evidence, it was alloted by the Government of Karnataka much earlier, he needs to produce any such allotment letter or possession certificate to that effect, but against his own contents of affidavit, he not choosen to produce any such document, which contradicts the defence of the accused and requires to believe that, business stating to purchase the said property the accused borrowed the loan from the complainant. Whatever the above said evidence appreciated herein above, is not been denied by way of any suggestion put to PW.1. Whatever the explanation given by the PW.1 in the witness box, the same remains unchallenged.
Judgment 27 C.C.No.18147/2017
25. The PW.1 in her cross-examination denied that, she was not the President of Mahila Sanga and in order to issue any loan to others. She specifically stated, on 15.03.2016 the accused came to her house and requested for loan and very particularly she reasserted in her cross-examination that, on 28.03.2016, she and her husband each gave Rs.5 lakhs to the accused as loan without taking any security documents. She also reasserted that, while gave said loan amount to the accused, she not obtained the Ex.P1-cheque, but categorically clarified that, on 04.10.2016 the accused for the purpose of repayment of loan got issued the questioned cheque at Ex.P1. Even in her cross-examination, she reasserted that, on 03.04.2017 on the instructions of accused, 1st time she presented the said cheque for encashment. When she asked for repayment the accused brought the Ex.P1-cheque inside his house by got filled the same and gave it to her. While gave money to the accused, her husband and children as well as the accused and his wife were present in the house of complainant. By way of deposing such explanatory answer the PW.1 has clarified whatever the real transaction held between complainant and accused and whatever the explanation placed by the PW.1 is not been suspected by the advocate for accused by way of denial.
Judgment 28 C.C.No.18147/2017
26. The PW.1 in her cross-examination also deposed that, the accused assured that, would pay monthly interest at 1% p.m. and borrowed the loan. She categorically stated,she not obtained any license. She stated that, monthly interest of Rs.10,000/- paid by the accused to the complainant and her husband and for having receipt of the said interest she not issued any receipt. She is specifically stated that, till 16.07.2016 the accused got paid the interest it means only for the period of 4 months, the accused got paid interest to the complainant. Though accused counsel were asked the PW.1 that, has she obtained any license, she stated no. It is not the case of complainant that, she was doing the money lending business with interest and paid the alleged loan to the several persons. Therefore, it made clear that, even no suggestion is made to PW.1 as to she was being any money lending license other than alleged loan paid to the accused. The sum of Rs.5 lakhs alleged loan is not a smaller amount, therefore, paid interest at 1% p.m. is not the big amount, despite, made use of the huge amount of the complainant. Therefore, the payment of minimum interest of 1% p.m. for the period of 4 months is not come in the way of complainant in claiming the said amount.
27. She was denied the suggestion made by the advocate for the accused that, the complainant was run Sthree Shakthi Sanga, Judgment 29 C.C.No.18147/2017 wherein used to lent loan to the female members on obtaining security cheques. If at all, the complainant did any such business or run Sthree Shakthi Sanga definitely, who were those is require to be suggested to PW.1, but in that regard, no suggestion is made, but made simply suggestion without any base so no significance can be given to the same. When PW.1 was tendered for cross-examination and reasserted her claim by withstood her contention and whatever the explanation given by her were not denied by the accused, at least if the accused has any other defence definitely, could have been suggested to PW.1, under which compelling circumstances the accused Ex.P1-cheque came to the hands of complainant, but the same lacks. The only one defence against the explanation given by the PW.1 reveal that, complainant to the wife of accused from Sthree Shakthi Sanga provided loan on obtaining security of cheque and accused does not known to the complainant and her husband and ever borrowed the alleged loan and whatever the signature and hand writing found in Ex.P1-cheque is not of the accused. The said suggestion discloses, the accused without having any defence simply suggested as such and to the same the accused gave his explanatory answer thereby reasserted his contention and Judgment 30 C.C.No.18147/2017 withstood the same successfully. Thereby, she proved her case by denying whatever imaginary defence suggested to her.
28. From the appraisal of evidence of PW.1, it reveal that, the PW.1 has proved her case by withstood her contention, though she was tendered for cross-examination and marathon cross- examination has been done by the advocate for the accused, nothing has been extracted to disbelieve her contention or proved the probable defence of the accused.
29. That apart, it is significant fact to note that, during the course of cross of PW.1 there is no suggestion made under which compelling circumstances the accused questioned cheque at Ex.P1 came to the possession of the complainant other than the case put forth by the complainant. However, while read out the incriminating evidence made against the accused, the accused himself gave his statement, as reproduced above. In the voluntary statement given by the accused in the open court, he took up altogether different defence stating that, in a Sthree Shakthi Sanga run by the complainant, his wife Smt.Thilagam took loan of Rs.1,70,000/- on the security of his signed blank cheque. Moreover, he also categorically admitted the said loan was not cleared by his wife and paid interest for few months. The Judgment 31 C.C.No.18147/2017 said statement given by the accused also revealed another transaction, wherein accused wife claim to be borrowed loan of Rs.1,70,000/- on the security of his signed blank cheque. By gave such statement, the accused had clearly admitted that, whatever the signature found in Ex.P1-cheque is of him. He try to convince that, it was given by his wife to the complainant in connection to the loan of Rs.1,70,000/-. Whatever the loan transaction run by Sthree Shakthi Sanga it was done through illegal and for doing the said business definitely, necessary documents is required to be possess, the accused could have been produce the same, as his wife was also part with the said Sanga, but in that regard, no scrap of paper or whatever the statement given by the accused is not been suggested to PW.1, thereby, the accused on stage by stage try to twist his own defence and created doubtful circumstances to disbelieve the probable defence. Whatever the statement given by the accused in the open court, against the incriminating evidence made against him is not been reflected by way of suggestion made to PW.1 in her cross-examination, which indicates, the accused without any specific strong grounds, go on mere plausible contention try to attack on the complainant without any base, the same has to be depricated.
Judgment 32 C.C.No.18147/2017
30. That apart, the accused himself choosen to entered into witness box and filed affidavit evidence. Wherein, he taken different kind of contention that, complainant is the President one of Mahila Sanga and said Sanga was functioning in the house of complainant and she had conducted certain chit business among the members of the said Sanga and his wife also one of the member of the same Sanga as well as chit. Contrary to the said his own statement, in the cross-examination of DW.1 has deposed, specifically that:
"ನಪ-1 ನನನ ಬಬಬಕನ ಚಕಆಗದ, ಅದರಲರರವ ಸಹ ಕಕಡ ನನನದದ. ಆ ಚಕಕನರ ನ ಪರರದಯಬದ ಪಡದಬತಹ ರಕರ5 ಲಕ ಮರಳಸರವ ಬಗಗ ನನದ ಕಕಟಟಬತಹ ಚಕ ಎಬದರ ಸರಯಲಲ. ಆ ಚಕಕನರ ನ ನನನ ಹಬಡತ ನ ನಡಸರತತದದ ರ, ಅದರ ಭದದತಗಗ ನಪ-1 ರ ಚಕಕನರ ಸಬಘವನರ ನ ಸರಮರರ 10 ವರರಗಳ ಹಬದ ನನರ ನದಡದನ. ನನನ ಹಬಡತ ಸತದದ ಶಕತ ಸಬಘವನರ ನ ನಡಸರತತದದರರ,ಅದಕಕ ಪರರದ ಕಯರದರರರಗದದರರ, ಆ ಬಗಗ ನನನಲ ದಖಲ ಇಲಲ, ನನನ ಹಬಡತ ಆಕ ಕಯರದರರರಗದದರರ ಎಬದರ ತಳಸದ ಮದರಗ ನನರ ಹದಳರತತದನ. ಪರರದ, ಸಬಘ ನಡಸರತತದದ ಬಗಗ ನನಗ ನನನ ಹಬಡತ ಹದಳದ ಮದಲ ಗಕತರತ , ಆ ಬಗಗ ನನನಲ ದಖಲ ಇಲಲ. ನನನ ಹಬಡತ ಆ ಸಬಘದಲ ಸಲವನರ ದ , ಅದರ ಭದದತಗಗ ನನನ ಚಕಕನರ ನ ಪಡದದರ ನ ಆಕ ಪಡದರಕಕಬಡದದರರ. ಸರಮರರ 10-15 ವರರಗಳ ಹಬದ ಹಗ ಕಕಟಟರಬಹರದರ, ನನಗ ನಖರವಗ ನನಪಲಲ. ನನನ ಹಬಡತ ಎರರ ಟ ಸಲ ಪಡದದದರರ ಎಬದರ ನನಗ ಹದಳಲಲ, ನನರ ಸಕರರ ನಕರನಗದರ ದ , ಖಲ ಚಕಕನರ ನ ನದಡಬರದರ ಎಬಬ ಅರವ ಇದದತರ. ಭತರ ಮಡದ ಚಕಕನರ ನ Judgment 33 C.C.No.18147/2017 ಮತ ತ ನದಡಬದಕರ ಎಬದರ ಸರ. ಸಕಯರ ನನನ ಹಬಡತ ಕದಳದ ಮದರಗ ಕಕಟಟದನಬದರ ನರಡಯರತತರ. ನನನ ಹಬಡತ ಸಲ ಪಡದ ಬಗಗ ದಖಲ ಹಜರರಪಡಸಲಲ."
31. On going through the said testimony of DW.1, the complainant advocate was suggested the very case of the complainant to the DW.1 by suggesting that, questioned cheque and signature therein is of the accused and he categorically admitted the same. It was also suggested to DW.1 that, the said cheque came to be issued by accused to the complainant for repayment of loan of Rs.5 lakhs, but he denies and try to gave his explanation that, his wife was run Sanga and above 10 years back as a security, he gave Ex.P1-cheque. More particularly he deposes, his wife had run Sthree Shakthi Sanga, wherein complainant was Secretary. If at all, his wife was run the said Sthree Shakthi Sanga and complainant was Secretary, definitely, complainant being a Secretary no need to lent the loan, but it is lookout of the president and other members. He stated, about 10 years back he gave questioned cheque to his wife and in that regard no suggestion is made and he utterly failed to prove that, complainant has run the said Sthree Shakthi Sanga in her house and lent loan to its members. He also deposed that, complainant Judgment 34 C.C.No.18147/2017 run the Sthree Shakthi Sanga were known to him through his wife and in that regard he had no document.
32. More categorically he stated, his wife were joined the said Sthree Shakthi Sanga and borrowed the loan and as a security she took cheques of the accused. He also stated, about 10 - 15 years back he gave the same, but does not remember the date and he also stated, his wife was not informed that, whatever the quantum of loan she borrowed from the said Sthree Shakthi Sanga. The said evidence rather convince to accept the defence of the accused it creates strong doubt. On one stretch against the same the complainant has run the Sthree Shakthi Sanga, he deposed, his wife has run. On the another stretch he stated, about 10 years back he gave Ex.P1-cheque to his wife as a security for the said loan. On the another stretch he stated, about 10 - 15 years, against the loan borrowed by his wife, she took Ex.P1-cheque of the accused. The said confusion statement given by the accused, rather it convince his defence, it creates strong doubt, as to the under which circumstances he gave questioned cheque to his wife and how it came to the hands of complainant. More categorically he deposes, he being a Central Government Employee, he knew the blank cheque should not be given to others. He stated that, he gave the cheque at the Judgment 35 C.C.No.18147/2017 instance of his wife one and stated that, he is not produced any document to show that, his wife borrowed the loan, thereby, the accused has utterly failed to prove that, in connection to the loan obtained by his wife from Sthree Shakthi Sanga, she gave cheque of the accused as security. The said probable defence taken by the accused appears to be improbable and without any base suggested so. In that regard, no document or any independent witness, who were the members of the alleged Sanga is not been examined.
33. That apart, the accused has contended in his affidavit evidence that, complainant was also did the chit business among the women members of Sanga. Contrary to the same in his cross-examination, he deposed that, complainant has conducted any kind of chit business he does not know. When he himself deposed, he does not know, then on which basis he was contended in his affidavit evidence, the complainant was run chit business appears that, without any base he took bald contention, the very probable defence taken by the accused only for the sake of defence has to be condemned, as which is baseless. During the course of cross of DW.1, the advocate for complainant has suggested to the DW.1, as to the alleged request made by him on 15.03.2016 for the loan of Rs.15 lakhs from the complainant and Judgment 36 C.C.No.18147/2017 her husband for the purchase of property and he undertakes to repay the same within 6 months by borrowing loan from the bank and also undertakes to pay interest at 2% p.m. Despite, the complainant told him, she had no money that much as he requested, on repeated requests made by the accused, since the accused wishes to purchase the property on their request on 23.03.2016 the complainant and her husband on 28.03.2016 gave Rs.5 lakhs each to the accused and directed him to pay monthly interest at 1% p.m., against the undertaking made by the accused of 2% p.m. The said suggestion were denied by the DW.1. Even it was suggested that, only interest for the period of 4 months were paid by accused, later not paid.
34. That apart, in the further cross of DW.1, it was suggested that, as agreed by the accused he not repaid loan within 6 months, when complainant got requested to repay, then accused gave Ex.P1-cheque to her, but he denied and not gave any explanation under what compelling circumstances he gave the said cheque, other than the contention taken by the complainant. But he categorically admitted in his cross-examination that:
"ನನನ ಹಬಡತಯ ಕಕದರಕಯಬತ ಪರರದಗ ನದಡರವ ಸಲರವಗ ಎರಡರ ಚಕರ ಕ ಗಳನರ ನ ನನರ ಕಕಟಟ ದನರ."
Judgment 37 C.C.No.18147/2017
35. By deposing so, though accused has denied the claim put forth by the complainant, but by admitting so, he categorically accepted the claim put forth by the complainant that, at the request of his wife in order to gave to the complainant he gave 2 cheques. By deposing so, he categorically admitted, for the purpose of hand over to the complainant he gave 2 cheques. With regard to another cheque is concern, the husband of complainant already initiated proceedings against the accused and by proving his case got convicted the accused. With regard to another cheque the complainant has brought the present case, wherein, she proved her contention and accused has admitted that, the questioned cheque were given to the complainant. Though accused has try to defend the matter by projecting the complainant has run Sthree Shakthi Sanga and chit business, he utterly failed to prove the same. But he categorically admitted, he gave questioned cheque to the complainant and bares the signature, it clearly manifest that, for the purpose of purchase property by stating so to the complainant, the accused borrowed loan from the complainant and her husband for the tune of Rs.5 lakhs each, for repayment of Rs.5 lakhs payable to the complainant herein, the accused gave Ex.P1-cheque and though he assured only paid interest for the period of 4 months and either Judgment 38 C.C.No.18147/2017 not paid the interest or not repaid the entire loan amount and though he got issued questioned cheque for repayment of the loan, the same came to be dishonoured for the reasons insufficient funds. The accused being a retired employee, he not suppose to do so, but it appears that, for his convenience he try to misuse the questioned cheque and troubled the complainant by approach this court of law and wonder years together.
36. The accused has utterly failed to prove his probable defence and on the other hand the complainant has proved her case beyond the reasonable doubt. Though it initial burden on the accused to prove his probable defence and negativated the case of complainant by furnishing rebuttable evidence, he utterly failed to do so. Though no reverse burden was created on the complainant by rebutting the case, the complainant herself has proved her case beyond the reasonable doubt, by furnishing clear, convincing acceptable evidence. Though accused borrowed the loan of Rs.5 lakhs from the complainant, for the reasons better known to him, years together not repaid the same. Though he got issued questioned cheque, the same came to be dishonoured, despite service of legal notice, he not try to cure the defect and the same has been continued till the day, therefore, for wantoning misuse of questioned cheque against the payment made to the Judgment 39 C.C.No.18147/2017 complainant, he stand years together in the court of law and act against the object of introduction of Negotiable Instruments Act. There is no substance in the probable defence of the accused, contrary to the complainant has discharged her burden and proved the guilt of the accused. Therefore, keeping in the mind of the object of introduction of Negotiable Instruments Act, it appears this court, it is fit case to convict the accused for the amount covered under the cheque at Exs.P1 at Rs.5 lakhs coupled with interest at 18% p.a from the date of cheque. As discussed above by way of furnishing clear, convincing, corroborative, oral as well as documentary evidence has proved that, the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. Therefore, looking into the transaction, it is the considered opinion of this court that, the accused has taken bald, inconsistence defence without any base and failed to prove his improbable defence. Contrary, the PW.1 has established the case beyond the reasonable doubt through oral as well as documentary evidence. Thereby, unnecessarily cause the complainant to approach this court of law, apart from made use of her money years together. The accused being a drawer of the cheque, inspite of use the instruments for the object made mentioned in the Act, in order to Judgment 40 C.C.No.18147/2017 ease business, he miss used the same and thereby, try to defeat the very object of the introduction of the Negotiable Instruments Act. Therefore, the accused is liable to be punished by way of imposing fine sentence on the cheque amount of Rs.5,00,000/- together with interest at 18% p.a as per Section 117 of Negotiable Instruments Act, from the date of cheque dated:03.04.2017 till its realization, as he made use of the complainant money for his benefit, at the risk and cost of the complainant. Though, knew that, earlier case filed by the complainant's husband was disposed off much early in respect of the same transaction as observed earlier, the accused has made use of the court machinery for his benefit to protract the matter and thereby further caused the complainant great hardship and loss. Therefore, the accused is to be convicted by imposing the cheque amount of Rs.5,00,000/- together with interest at 18% p.a from the date of cheque dated:03.04.2017 till its realization. Out of the said fine amount, sum of Rs.4,95,000/- and interest on Rs.5,00,000/ at 18% p.a shall be payable to the complainant as compensation and remaining amount of Rs.5,000/- shall be payable to the state as fine amount. If the accused fails to pay the whole fine amount, the accused shall undergo simple imprisonment for 12 months. Thereby, one more opportunity has provided to the accused to Judgment 41 C.C.No.18147/2017 comply the order. Otherwise, the very purpose of filing complaint will be defeated. As discussed above, the complainant has proved his case beyond reasonable doubt. In the result, the accused shall sentence to pay the fine amount as detailed in the order portion. Accordingly, Point Nos.1 and 2 are answered in the Affirmative.
50. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
ORDER Accused found guilty for the offence punishable under Section 138 of Negotiable Instruments Act.
Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay fine of Rs.5,00,000/- together with interest at 18% p.a from the date of cheque dated:03.04.2017 till its realization Out of the said fine amount, sum of Rs.4,95,000/- and interest on Rs.5,00,000/ at 18% p.a from 03.04.2017 till its realization shall be payable to the complainant as compensation as per Section 357 of Cr.P.C and remaining amount of Rs.5,000/- shall be payable to the state as fine.
Judgment 42 C.C.No.18147/2017 In default of pay the fine amount, the accused shall under go simple imprisonment for 12 (Twelve) Months.
The bail bond and cash security/surety bond of the accused stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 1st day of December
- 2020) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Lakshmidevi.B List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque Ex.P1(a) : Signature of accused Exs.P2 & P3 : Bank endorsements Ex.P4 : Office copy of legal notice Ex.P5 : Postal receipt Ex.P6 : Postal Acknowledgment card Ex.P7 : CC of private complaint in C.C.No.15882/17 Ex.P8 : CC of deposition in C.C.No.15882/17 Ex.P9 : CC of deposition of DW.1 in C.C.No.15882/17 Ex.P10 : CC of deposition of DW.2 in C.C.No.15882/17 Ex.P11 : CC of deposition of DW.3 in C.C.No.15882/17 Ex.P12 : CC of reply notice Ex.P13 : CC of cheque bearing No.681807 Judgment 43 C.C.No.18147/2017 Ex.P14 : CC of judgment in C.C.No.15882/17 Ex.P15 : CC of photograph along with witness list Ex.P16 : Photograph Ex.P17 : CC of order sheet in Crl.A.No.1472/2018 Ex.P18 : CC of judgment in Crl.A.No.1472/2018
List of Witnesses examined on behalf of the defence:
DW.1 : C.Aravindan List of Exhibits marked on behalf of defence:
- Nil -
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 44 C.C.No.18147/2017
01.12.2020.
Comp -
Accd -
For Judgment
Case called out.
Complainant and accused are
absent. No representation from both side
advocates, despite, web-host the case
proceedings and intimate the date of
pronouncement of judgment. Hence, as
per Section 353(6) of Cr.P.C. the following judgment is pronounced in the open court vide separate order.
Judgment 45 C.C.No.18147/2017
ORDER
Accused found guilty for the offence
punishable under Section 138 of Negotiable Instruments Act.
Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay fine of Rs.5,00,000/- together with interest at 18% p.a from the date of cheque dated:03.04.2017 till its realization Out of the said fine amount, sum of Rs.4,95,000/- and interest on Rs.5,00,000/ at 18% p.a from 03.04.2017 till its realization shall be payable to the complainant as compensation as per Section 357 of Cr.P.C and remaining amount of Rs.5,000/- shall be payable to the state as fine.
In default of pay the fine amount, the accused shall under go simple imprisonment for 12 (Twelve) Months.
The bail bond and cash security/surety bond of the accused stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.