Bangalore District Court
Sri.Anand.R vs Smt.Sowbhagya.G on 13 April, 2023
1 C.C.No.27040/2018
KABC030732392018
Presented on : 03-10-2018
Registered on : 03-10-2018
Decided on : 13-04-2023
Duration : 4 years, 6 months, 10 days
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated : This the 13th day of April 2023
Present: Sri.N.M. RAMESHA, B'Com.,L.L.M.
XVI Addl.C.M.M., Bengaluru City.
Case No. C.C.No
: CC.No.27040/2018
Complainant : Sri.Anand.R
S/o Late.S. Revanna
Aged about 44 years
R/at No.930/3, 11th Cross,
BSK 1st Stage, Bank Colony,
Srinagar,
Bengaluru-560050.
(By Sri.N.M.Nanjundegowda., Adv,)
V/s
Accused : Smt.Sowbhagya.G
W/o Gopi.M
Aged about 36 years
R/at No.253, 9th Main,
Sampangiramanagar,
2 C.C.No.27040/2018
Bengaluru-560027.
(By Aruna S.G.R., Adv.,)
Case instituted : 01.09.2018
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is Convicted
Date of order : 13.04.2023
JUDGMENT
The Complainant has filed this complaint against the accused under the provisions of Sec.200 of the Code of Criminal Procedure, for the offence punishable U/Sec.138 of the Negotiable Instruments Act.
2. The case of the Complainant is as under:-
The accused was well known to complainant since several years through her husband Sri.Gopi.M. The accused has approached the complainant for hand loan of Rs.10 lakhs for business purpose and legal necessity. The complainant has paid a loan of Rs.10 lakhs to the accused on 07.10.2017 by way of cash at his residence. The accused has agreed to repay the loan within 8 months. The accused has issued a cheque bearing No.908613 dated 02.07.2018 for Rs.10 lakhs drawn on 3 C.C.No.27040/2018 Canara Bank, Sampangiram Nagar Branch, Bengaluru, in favour of the complainant towards the repayment of loan of Rs.10 lakhs.
3. It is further averred in the complaint that the complainant has presented the cheque for encashment before the Indian Bank, Basavanagudi Branch, Bangalore. But the cheque was dishonoured for want of sufficient funds in the account of the accused vide bank endorsement dated 20.07.2018. Therefore, the complainant got issued a legal notice dated 30.07.2018 calling upon the accused to pay the cheque amount within 15 days from the date of service of legal notice. The notice has been served on the accused on 02.08.2018. But, in spite of service of legal notice, the accused has failed to pay the cheque amount within 15 days from the date of service of legal notice and thereby committed an offence punishable U/s.138 of NI Act. Hence, this complaint.
4. After presentation of complaint, it was ordered to be registered as PCR No.11888/2018 vide order dated 11.09.2018.
5. The sworn statement of the complainant has been recorded and the documents were got marked as per Ex.P.1 to P.9.
4 C.C.No.27040/20186. My Learned Predecessor in office having heard the arguments of learned counsel for complainant and having satisfied with the complaint averments, sworn statement of complainant and documents at Ex.P.1 to P.9 and having satisfied with prima facie materials placed on record has taken the cognizance for the offence punishable U/s.138 of N.I.Act and the case was ordered to be registered as CC.No.27040/2018 and the process was ordered to be issued against the accused vide order dated 26.09.2018.
7. On service of summons, the accused has appeared before the court through her learned counsel and obtained the bail by depositing cash surety of Rs.10,000/- vide Q.No.10784/2019 dt:21.09.2019. Copies of all the prosecution papers were supplied to accused.
8. The Plea of accused for the offence punishable U/s.138 of N.I.Act has been recorded on 21.09.2019 and the substance of accusation has been read over and explained to accused in the language known to her. The accused has pleaded not guilty, but claims to be tried.
9. In order to establish the guilt against the accused, the complainant got himself examined as PW-1 and got the documents marked as Ex.P.1 to P.9. PW.1 5 C.C.No.27040/2018 was subjected for cross examination by the learned counsel for the accused.
10. The statement of accused as contemplated under the provisions of Section 313 of Cr.P.C has been recorded vide dated 11.07.2022 and the incriminating evidence as such forthcoming against the accused in the evidence of complainant and documents has been read over and explained to the accused in the language known to her. But the accused has denied the entire evidence of complainant and documents. The accused did choose to enter the defence evidence.
11. In order to substantiate her defence, the accused got herself examined as DW.1 and got the documents marked as Ex.D1 to D9. DW.1 was subjected for cross-examination by the learned counsel for the complainant.
12. I have heard the arguments of learned counsel for both the side. The learned counsel for the accused has filed memo with citations.
13. In the light of the arguments canvassed by the learned counsel for both the side, I have carefully perused the oral and documentary evidence placed on 6 C.C.No.27040/2018 record and gone through the principles laid down in the cited decisions.
14. Now, the points that would arise for my consideration are as under:-
1. Whether the complainant proves that the accused has issued a cheque bearing No.908613 dated 02.07.2018 for Rs.10 lakhs drawn on Canara Bank, Sampangiram Nagar Branch, Bengaluru, in his favour towards the legally recoverable debt of Rs.10 lakhs and on presentation of cheque for encashment before the Indian Bank, Basavanagudi Branch, Bengaluru, it was dishonoured for want of sufficient funds in the account of the accused vide bank endorsement dt:20.07.2018 and in spite of issuance of legal notice dt: 30.07.2018 and in spite of service of legal notice on 02.08.2018, the accused has failed to pay the cheque amount and thereby committed an offence punishable U/s.138 of N.I.Act?
2. What Order?
15. On considering and assessing the oral and documentatry evidence placed on record, now my answers to the above points are as under :
[ Point No.1: In the Affirmative.
Point No.2: As per final order for the following :-7 C.C.No.27040/2018
REASONS
16. Point No.1 : The provisions of Sec.20 of Negotiable Instrument Act deals about Inchoate Stamped Instruments. As per this provisions of law, where one person signs and delivers to another a paper stamped in accorance with the law relating to negotiable instrements then in force in India, and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima-facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, or any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instruemnt, in the capacity in which he signed the same, to any holder in due course for such amount.
17. The provisions of Sec.118 of Negotiable Instrument Act deals about presumptions as to neogtiable instruments. As per this provisions of law, unit the contrary is proved, the following presumptions shall be made:-(a) of consideration: that every negotiable 8 C.C.No.27040/2018 instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transfered, was accepted, indorsed, negotiated or transferred for considertaion: (b) as to date: that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance- that every accepted bill of exchange was accpted within a reasonable time after its date and before its maturity. (d) as to time of transfer-that every transfer of a negotiable instrument was made before the maturity; (e) as to order of indorsement; that the indorsements appearing upon a negotiable instrument were made in the order in which they apear thereon; (f) as to stamps-that a lost promissory note, bill of exchange or cheque was duly stamped and (g) that holder is a holder indue course- that the holder of a negotiable instrument is a holder in due course. [
18. The provisions of Sec.138 of Negotiable Instrument Act deals about dishonour of cheque for insufficiency etc., of funds in the accounts. As per this provisions of law, where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or 9 C.C.No.27040/2018 inpart, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other proviosn of this Act, be punished with imprisonment for a term which may be extended to two years or with fine which may extend to twice the amount of the cheque or with both.
19. As per the proviso attached to the above said provisions of law, nothing contained in this section shall apply unless-(a) the cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier. (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing , to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the 10 C.C.No.27040/2018 cheque, within fifteen days of the receipt of the said notice.
[ 20. The provisions of Sec.139 of Negotiable Instrument Act deals about presumption in favour of holder. As per this provisions of law, it shall be presumed, unles 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, or any debt or other liability.
21. The provisions of Section 146 of the Negotiable Instruments Act, 1881 deals about the Bank's slip prima facie evidence of certain facts. As per this provisions of law, the Court shall, in respect of every proceeding under this Chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved.
22. Now keeping the above said provisions of Section 20, 118, 138, 139 and 146 of N.I.Act, in mind, let us consider as to whether the complainant could able to comply all the mandates, ingredients, terms and conditions of Section 138 of N.I.Act, so as to draw the 11 C.C.No.27040/2018 presumption in his favour as per Section 118 and 139 of N.I.Act.
23. It is averred in the complaint and stated by PW.1 in his oral evidence that the accused was well known to him since several years through her husband Sri.Gopi.M. and the accused has approached him for hand loan of Rs.10 lakhs for business purpose and legal necessity and hence, he has paid a loan of Rs.10 lakhs to the accused on 07.10.2017 by way of cash at his residence and the accused has agreed to repay the loan within 8 months and issued a cheque bearing No.908613 dated 02.07.2018 for Rs.10 lakhs drawn on Canara Bank, Sampangiram Nagar Branch, Bengaluru, in his favour towards the repayment of loan.
24. It is further averred in the complaint and stated by PW.1 in his oral evidence that he has presented the cheque for encashment before the Indian Bank, Basavanagudi Branch, Bangalore, but it was dishonoured for want of sufficient funds in the account of the accused vide bank endorsement dated 20.07.2018 and therefore, he got issued a legal notice dated 30.07.2018 calling upon the accused to pay the cheque amount within 15 days from the date of service of legal notice, the notice has been served on the accused on 12 C.C.No.27040/2018 02.08.2018, but, in spite of service of legal notice, the accused has failed to pay the cheque amount within 15 days from the date of service of legal notice and therefore, he has presented the complaint before the court on 01.09.2018.
25. The complainant has produced the cheque dated 02.07.2018, bank endorsement dated 20.07.2018, legal notice dated 30.07.2018, postal receipts dated 30.07.2018, postal acknowledgement dated 02.08.2018, courier receipt, on demand promissory note and consideration receipt dated 02.07.20.18 and complaint and they are marked at Ex.P1 to P9.
26. The accused has not seriously disputed the fact that the cheque vide Ex.P1 is belongs to her and drawn the same on an account maintained by her with her banker at Canara Bank, Sampangiramnagar Branch, Bengaluru or her signature on the cheque or issuance of cheque in question to the complainant or presentation of cheque for encashment or dishonour of cheque for want of sufficinet funds in her account or issuance of legal notice. In fact, there are no specific suggestions to PW.1 either to deny the issuance of cheque or the signature of the accused on the cheque or presentation of cheque for encashment before the bank 13 C.C.No.27040/2018 or dishonour of cheque for want of sufficient funds in the account of the accused or issuance of legal notice.
27. But, on the other hand, it is suggested to PW.1 that the accused has issued a signed blank cheque and on demand promissory note and consideration receipt towards an advance amount and the signature at Ex.P1(a) is as that of the signature of the accused. During the course of recording of plea and statement U/Sec.313 of Cr.P.C., the accused has not disputed the cheque and on demand promissory note and consideration receipt including her signature on the cheque and on demand promissory and consideration receipt.
28. Be that as it may, the accused in her chief- examination itself has stated that she has issued a signed cheque and documents to the complainant towards an advance amount. Be that as it may, the accused in her cross-examination has admitted and stated that has been residing at Sampangiramnagar since 12 years and the cheque in question shown to her is belongs to her account and the signatures on the cheque and pronote and consideration receipt shown to her are as that of her signatures and the house bearing No.253, 9th Main, Sampangiramnagar, Bengaluru is her 14 C.C.No.27040/2018 house and the letter send to the address mentioned in Ex.P6 & P7 would reach her.
29. From these materials placed on record, it is crystal clear that the accused by necessary implications has admitted that the cheque vide Ex.P1 is belong to her and she has drawn the cheque on an account maintained by her with her banker namely Canara Bank, Sampangiramnagar Branch, Bengaluru and she has also admitted her signatures on Ex.P1 cheque and pronote and consideration receipt at Ex.P8 and issuance of the cheque to the complainant. The accused has also admitted about the presentation of cheque for encashment before the Indian Bank, Basavanagudi Branch, Bengaluru and dishonour of cheque for want of sufficient funds in her account and the issuance of legal notice and the address mentioned on the notice. Under these circumstances, it is said that the admissions are the best proof for the complainant to comply the mandates of Sec.138 of NI Act.
30. However, on careful perusal of complaint averments, oral evidence of PW.1 and the documentary evidence at Ex.P1 to P9 including the material suggestions put to PW.1 during the course of her cross- examination and material admissions given by DW.1 in 15 C.C.No.27040/2018 he cross-examination, it clearly establishes that the cheque vide Ex.P1 is belongs to the accused and she has drawn the same on an account maintained by her with her banker namely Canara Bank, Sampangiramnagar Branch, Benglauru and the signatures vide Ex.P1(a) & P8(a) and P8(b) are as that of the signatures of the accused.
31. The materials placed on record clearly establishes that on presentation of cheque for encashment before the Indian Bank, Basavanagudi Branch, Bengaluru, it was dishonoured for want of sufficient funds in the account of the accused vide bank endorsement at Ex.P2 dated 20.07.2018. Therefore, the complainant got issued a legal notice vide Ex.P3 dated 30.07.2018 calling upon the accused to pay the cheque amount within 15 days from the date of service of legal notice which has been served on the accused as per Ex.P6 & P7 vide dated 02.08.2018. But, in spite of service of legal notice, the accused neither replied the notice nor made necessary arrangements to pay the cheque amount within the stipulated time from the date of service of legal notice.
32. It is pertinent to note here that the cheque vide Ex.P1 is dated 02.07.2018. As could be seen from 16 C.C.No.27040/2018 the document at Ex.P2, the cheque was dishonoured for want of sufficinet funds in the account of the accused vide bank endorsement dated 20.07.2018. So, it is crystal clear that the complainant has presented the cheque for encashment before the bank within its validity.
33. As could be seen from the documents at Ex.P3 to P5, the complainant got issued a legal notice on 30.07.2018 giving 15 days time to the accused to comply the demands made in the notice. So, it is crystal clear that the complainant has issued a legal notice within the stipulated period from the date of receipt of bank endorsement. As could be seen from the documents at Ex.P6 & P7, the notice sent by the complainant has been served on the accused. But, in spite of service of legal notice, the accused neither replied the notice nor made necessary arrangements to pay the cheque amount within 15 days from the date of service of legal notice. Therefore, the complainant without any alternative way has presented the complaint before the court on 01.09.2018 which was well within time.
34. So, it is crystal clear that the complainant has complied the mandates of Sec.138 of NI Act by adducing the oral evidence of PW.1 and by producing the 17 C.C.No.27040/2018 documentary evidence at Ex.P1 to P9. Under these circumstances, when once the complainant has complied the mandates of Sec.138 of NI Act, this court has no option, but to draw the presumptions in favour of the complainant under the provisions of Sec.118 and 139 of NI Act.
35. Admittedly, the presumptions available in favour of the complainant under the provisions of Sec.118 and 139 of NI Act are not conclusive proof, but they are rebuttable in nature. Therefore, when once the complainant has complied the mandates of Sec.138 of NI Act and when once the court has drawn the presumptions in favour of the complainant under the provisions of Sec.118 and 139 of NI Act, then the onus shifts on the accused to raise a probable defence and to prove the same before the court with legal evidence and to rebut the statutory presumptions available in favour of the complainant under the provisions of Sec.118 and 139 of NI Act.
36. The learned counsel for the complainant has argued with force that the complainant has complied all the mandates of Sec.138 of NI Act by adducing the oral evidence of PW.1 and by producing the documentary evidence at Ex.P1 to P9 which clearly establishes that 18 C.C.No.27040/2018 the accused has availed a loan of Rs.10 lakhs from the complainant on 07.10.2017 and issued the cheque vide Ex.P1 to the complainant towards the legally recoverable debt of Rs.10 lakhs and on presentation of cheque for encashment within its validity, it was dishonoured for want of sufficient funds in the account of the accused vide bank memo at Ex.P2 dated 20.07.2018 and therefore, the complainant got issued a legal notice vide Ex.P3 dated 30.07.2018 which was duly served on the accused as per Ex.P6 & P7 vide dated 02.08.2018, but in spite of service of legal notice, the accused neither replied the notice nor made necessary arrangements to pay the cheque amount.
37. It is further contended that the accused neither disptued the cheque nor the signature on the cheque or presentation of cheque for encashment or dishonour of cheque for want of sufficient funds in her account or issuance of notice or the address mentioned in the notice, but the accused has admitted all these material facts. However, the accused has taken a defence that the complainant was the tenant and she has issued the signed blank cheque and signed on demand promissory note and consideration receipt to the complainant towards the repayment of advance rent amount, but the complainant has failed to return the 19 C.C.No.27040/2018 cheque and pronote and consideration receipt and misused the said documents by filing false complaint and the name of the complainant do not finds a place on the bank memo and therefore, the complainant is not the holder in due course of the cheque and the complainant had no capacity to lend that much of amount of Rs.10 lakhs and the notice issued by the complainant has not been served upon her. But the defence taken by the accused has not been proved before the court. Nothing is elicited in the evidence of PW.1 and all the material suggestions have been specifically denied by PW.1 and thereby the accused has failed to rebut the statutory presumptions available in favour of the complainant under the provisions of Sec.118 and 139 of NI Act.
38. It is further contended that the oral and documentary evidence at Ex.P1 to P9 placed on record clearly establishes that the complainant was having sufficient source of income and therefore, lend the loan of Rs.10 lakhs to the accused and the accused has issued the cheque in question towards the legally recoverable debt of Rs.10 lakhs and the notice has been duly served upon the accused and thereby the complainant has proved the guilt against the accused 20 C.C.No.27040/2018 and therefore, the accused is liable for conviction U/Sec.138 of NI Act.
39. Per contra, the learned counsel for the accused has vehemently contended that the oral evidence of PW.1 and the documentary evidence at Ex.P1 to P9 do not establish the loan transaction of Rs.10,00,000/- between the complainant and the accused at any point of time and the complainant has not placed any materials before the court to prove the loan transaction and the accused has issued the cheque in question towards the legally recoveable debt of Rs.10 lakhs and thereby the complainant has failed to prove the guilt against the accused.
40. It is further contended that the complainant has not produced any documents to prove the loan transaction and the complainant has also not produced the income tax records to prove the transaction. The notice issued by the complainant has not been served on the accused. The signature of the accused do not finds a place on the postal acknowledgement at Ex.P6 and thereby the complainant has failed to comply the mandates of Sec.138(b) of NI Act. The name of the complainant do not finds a place on the bank endorsement at Ex.P2 and therefore, the complainant is 21 C.C.No.27040/2018 not the holder in due course of the cheque and thereby the complainant has failed to comply the mandates of Sec.138 of NI Act. The complainant has no financial capacity to lend that much of huge amount of Rs.10 lakhs to the accused at any point of time.
41. It is further contended that the oral evidence of DW.1 and the documentary evidence at Ex.D1 to D6 clearly establishes that the complainant was the tenant under the accused and the complainant was doing the business of water can supply and rubber work and there was a dispute between the complainant and husband of accused in respect of misuse of name of the husband of the accused and therefore, the accused has requested the complainant to vacate the house for which he has sought for signed blank cheque and pronote and consideration receipt and therefore, the accused has issued the signed blank cheque and pronote and consideration receipt, but the complainant has failed to return the said documents and misused the said documents by filing false complaint. The oral evidence of PW.1 and the documentary evidence at Ex.P1 to P9 is vague in nature and not specific with respect to loan transaction. The accused has raised a probable defence and proved the same before the court by adducing the oral evidence of DW.1 and by producing documentary 22 C.C.No.27040/2018 evidence at Ex.D1 to D6 and also by eliciting the material facts in the cross-examination of PW.1 which clearly establishes the defence taken by the accused. But, the complainant has failed to prove the guilt against the accused and therefore, the accused is entitled to an order of acquittal.
42. In support of his submission, the learned counsel for the accused has relied upon a decision reported in (2009) 14 SCC 683 in between Jugesh Sehgal V/s Shamsher Singh Gogi, wherein while dealing with the provisions of Sec.138 of NI Act, the Hon'ble Supreme Court has pleased to held that in order to constitute an offence U/Sec.138 of NI Act for dishonour of cheque, all the ingredients need to be satisfied before a person who had drawn the cheque can be deemed to have committed an offence U/Sec.138 of NI Act.
43. The learned counsel for the accused has also relied upon a decision rendered by the Hon'ble High Court of Gujarat in Special.Crl.Application No.956/2013 in between Jyothieendra Mothibhai Thakkar V/s State of Gujarat and others, wherein while dealing with the provisions of Sec.138 of NI Act, the Hon'ble High Court of Gujarat has pleased to held that merely 23 C.C.No.27040/2018 being an heir of payee, though may be in possession of instrument, would not automatecally make such heir or legatee a 'holder in due course'. The concept of holder in due course does not recognize such position, beside which the ingredients of being a possessor for consideration has to exist. Therefore, upon death of the payee, heir of legattee thereof does not step into the shoe of the deceased payee merely because he happens to be an heir or a relative or a legattee. Such person unless is in possession of the instruments and unless such possession is for consideration, cannot file a complaint posing himself or herself as legal heir.
44. The learned counsel for the accused has also relied upon a decision rendered by the Hon'ble Supreme Court in Crl.A.No.711/2019 in between M.D.Thamos V/s P.S.Jaleel and others, wherein while dealing with the provisions of Sec.138 of NI Act, the Hon'ble Supreme Court has pleased to held that the provisions of Sec.138 of NI Act cast on the payee or the holder in due course of the cheque, as the case may be, a duty to make a demand for payment of the said amount of money by giving a notice in writing, to the drawer of the cheque. Service of statutory notice upon the accused is mandatory.
24 C.C.No.27040/201845. The learned counsel for the accused has also relied upon a decision reported in (2019) 5 SCC 418 in between Basalingappa V/s Mudibasappa, wherein while dealing with the provisions of Sec.138 of NI Act, the Hon'ble Supreme Court has pleased to held that the prosecution must prove the guilt of an accused beyond all reasonable doubt, the stand of proof so as to prove a defence on the part of the accused is proporandance of probabilities. Inference of propondrance of probabilities can be drawn not only from the materials brought on record by the parties and also by reference to the circumstances upon which accused relies.
46. Now, keeping the arguments canvassed by the learned counsel for both the side and the principles laid down in the above cited decision in mind, let us consider as to whether the accused could able to raise a probable defence and whether the accused could able to prove the same before the court and whether the accused could able to rebut the statutory presumptions available in favour of the complainant under the provions of Sec.118 and 139 of NI Act.
47. It is the oral evidence of DW.1 before the court on oath that she and her husband are the joint owners of house No.259, in which the complainant was the 25 C.C.No.27040/2018 tenant from 2013 to 2018 who had paid an adavance amount of Rs.1,25,000/- by paying monthly rent of Rs.5,500/-. The complainant was doing water can supply work and rubber work and at that time, her husband was the corporater of BBMP, Bengaluru for Sampangiramnagar and the complainant has misused the name of her husband and therefore, there was a galata between the complainant and her husband and therefore, they have requested the complainant to vacate the house for which the complainant has requested to refund the advance amount and therefore, she has issued a blank singed cheque and pronote and consideration receipt, but the complainant has failed to return the cheque and documents. She has not availed any loan from the complainant and there was no necessity for her to avail loan from the complainant and the complainant had no capacity to lend amount.
48. The accused has produced the certified copy of the sale deed dated 18.01.2008, BSNL bills and bills issued by an Enforcement Automation Center and they are marked at Ex.D1 to D6.
49. It is pertinent to note here that while recording the plea of accused on 21.09.2019, the accused has pleaded not guilty, but claims to be tried. In other 26 C.C.No.27040/2018 words, the defence of the accused at the time of recording the plea was as that of total denial, but there is no specific defence.
50. Be that as it may, while recording the statement U/Sec.313 of Cr.P.C., the accused has denied the incriminating evidence. In other words, even while recording the statement U/Sec.313 of Cr.P.C., the defence of the accused was as that of total denial, but there is no specific defence.
51. However, during the course of cross- examination of PW.1 and during the course of her oral evidence before the court, the accused has taken a first defence that the complainant was a tenant and paid an advance amount of Rs.1,25,000/- and also paying monthly rent of Rs.5,500/- and since there was a galata between complainant and her husband, they have requested the complainant to vacate the house for which he has requested to refund the advance amount and therefore, she has issued a signed blank cheque and signed documents and she has not availed loan of Rs.10 lakhs from the complainant and not issued the cheque in question for repayment of said loan amount.
52. But, though the accused has taken this bald defence, same has not been amplified before the court in 27 C.C.No.27040/2018 any manner. The accused neither examined any independent witnesses before the court nor elicited any material facts in the cross-examination of PW.1 either to substantiate her probable defnece or to rebut the statutory presumptions available in favour of the complainant under the provisons of Sec.118 and 139 of NI Act or to falsify the case made out by the complainant or to falisfy the oral evidence of PW.1 or to falsify the docuemntary evidence at Ex.P1 to P9.
53. No doubt, it is suggested to PW.1 that he had no financial capacity to lend that much of loan of Rs.10 lakhs to the accused; that he was a tenant under the accused; that since there was a dispute between him and the husband of the accused in the year 2018, the accused has requested him to vacate the house; that at the time of vacating the house in the month of April 2018, he has obtained a signed blank cheque and pronote and consideration receipt; that except the signature on the cheque and pronote, the remaining contents of the cheque are not the handwriting of the accused and he has filled the contents of the cheque; that without the knowledge of the accused, he got typed the document at Ex.P8; that there was no necessity for the accused to avail a loan of Rs.10 lakhs; that he has misused the cheque and pronote which were issued 28 C.C.No.27040/2018 towards the repayment of advance amount of Rs.1,25,000/-; that he has concocted and created the documents and that the accused is not due for any amount.
54. But, all these material suggestions have been specifically denied by PW1. Therefore, it is said that the denied suggestions are always remained as suggestions only and not come in the way of accused either to substantiate her probable defence or to rebut the statutory presumption U/sec.118 and 139 of NI Act available in favour of the complainant or to falsify the case made by the complainant or to falsify the oral evidence of PW1 or to falsify the documentary evidence vide Ex.P1 to P9.
55. However, there is no specific material suggestions to P.W.1 either to deny the issuance of cheque in question vide Ex.P1 or to deny the pronote and consideration receipt vide Ex.P8 to the complainant or to deny the presentation cheque before the bank for encashment or to deny the dishounour of cheque for want of sufficinet funds in the account of the accused or to deny the issuance of legal notice. There is also no specific suggestions to PW.1 as to how and in what 29 C.C.No.27040/2018 manner the complainant has concocted and created the documents produced before the court.
56. It is pertinent to note here that if really the complainant was the tenant under the accused and paid an advance amount of Rs.1,25,000/- and was paying monthly rent of Rs.5,500/- and if really there was a quarrel between the complainant and the husband of the accused and if really the accused had requested the complainant to vacate the rented house and if really the complainant had demanded for signed blank cheque and pronote and consideration receipt and if really the accused has issued a signed blank cheque and pronote and consideration receipt towards the repayment of advance amount of Rs.1,25,000/- and if really the complainant has misused the cheque and pronote and consideration receipt by filling the contents of the cheque and promissory note and consideration receipt and if really the accused is not due for any loan amount towards the complainant, then the accused could have either issued a stop payment instructions to the concerned Bank to stop the payment or she could have issued a reply notice naratting the alleged real facts or she could have taken some legal action against the complainant for misuse of cheque and pronote and consideration receipt for mentioning the contents on the 30 C.C.No.27040/2018 cheque and pronote and consideration receipt or she could have produced some documents before the court for having taken any legal action against the complainant or she could have say the specific defence either at the time of recording of plea or at the time of recording of her statement U/Sec.313 of Cr.P.C. before the court or she could have produced the alleged rent agreement or any other documents or she could have examined her husband or any other independent witnesses before the court. But, she has not done so. No explanation as such forthcoming either in the evidence of DW.1 or elicited any material facts in the cross- examination of PW.1 in this regard. In the absence of such an explanation and in the absence of rent agreement or any othe cogent materials on record, an adverse inference has to be drawn against the accused for withholding the material documents being produced before the court and for withholding the material witnesses being examined before the court.
57. But, on the other hand, DW.1 in her cross- examination has admitted that the original rent agreement is in her custody and she used to keep the original rent agreement with her ever after vacating the house and she is in the custody of rent agreement of tenants. It is also admitted by DW.1 that there was a 31 C.C.No.27040/2018 rent agreement between her and complainant, but she has not produced the said document before the court and she has also not refunded the advance amount to the complainant for want of new tenants. But, in this regard there was no recitals in the rent agreement and she has not executed any document to the complainant towards the advance money and she do not know as to whether she has produced the rent agreement before the court or not and she do not know the disputes between her husband and the complainant.
58. It is also stated by DW.1 in her cross- examination that she and her husband have not lodged any complaint against the complainant. It is also stated by DW.1 that she has not taken any legal action against the complainant for having filed the false case by the complainant against her and she has not visited the bank after July 2018 and she has not produced the joint rent agreement before the court and she do not know the transaction between the complainant and her husband and she do not know as to why and for what reason she has produced the documents at Ex.D2 to D9.
59. DW.1 has also stated that neither she nor her husband have issued any notice to the complainant or lodged any complaint against the complainant and there 32 C.C.No.27040/2018 was no impediment for her to take legal action against the complainant and she has not produced any documents to show that the complainant was her tenant. All these inaction on the part of the accused would lead to an adverse inference against the probable defence taken by the accused. Consequently, the defence taken by the accused is not sustainable under law and therefore, cannot be accepted.
60. The accused has also taken a second defence that the complainant had no financial capacity so as to lend an amount of Rs.10 lakhs to her and the complainant has not produced any documents before the court. But the complainant has produced an on demand promissory note and consideration receipt and it is marked at Ex.P8. The accused has not disputed her signature on the documents which are marked as per Ex.P8(a) and 8(b). It is also forthcoming in the evidence of PW.1 that he has been doing the business of real estate and also doing rubber glouse manufactuing work and he came in contact with accused through her husband and they have acquaintance with each other since 15 to 20 years.
61. In fact, it is suggested to PW.1 that he has produced the income tax returns for the year 2016-17, 33 C.C.No.27040/2018 2017-18 and 2018-19 including Form No.3 & 4 and an amount of Rs.6,67,968/- is shown in the income tax returns for the year 2016-17 and an amount of Rs.8,52,387/- is shown in the income tax returns for the year 2018-19. From these materials placed on record, it is crystal clear that the complainant was doing a rubber glouse manufacturing work and real estate business and has been submitting income tax returns to the concerned departments and therefore, he was having sufficient source of income so as to lend a loan of Rs.10 lakhs to the accused.
62. No doubt, as rightly pointed out by the learned counsel for the accused that the complainant has not declared the lending of loan of Rs.10 lakhs to the accused in his income tax returns and the complainant stated to have paid a loan of Rs.10 lakhs to the accused by way of cash. It is also no doubt true that as per Sec.269ss of Income tax Act 1961, any money transaction which exceeds Rs.20,000/- has to be done only through cheque. But, in the present case, it is forthcoming in the evidence of PW.1 that since the accused has sought for loan by way of cash and assured to repay the loan within 3 months, he has paid the loan of Rs.10 lakhs to the accused by way of cash and did not choose to declare the same in his income tax returns.
34 C.C.No.27040/201863. It is pertinent to note here that even if the complainant has not complied the mandates of Income Tax Act, it is for the concerned officials of the Income Tax Department has to take legal action against the complainant. The provisions of Negotiable Instruments Act do not prescribe or mandate that the money transaction has to be done only through the cheque and not by way of cash. Under these circumstances, merely because the complainant has paid a loan of Rs.10 lakhs to the accused by way of cash and merely because the complainant has failed to declare the loan transaction with accused in his income tax returns, the entire case made out by the complainant and the oral evidence of PW.1 and the documentary evidence at Ex.P1 to P9 cannot be doubted or discarded. Under these circumstances, the accused cannot question the provisions of Sec.269ss of Income Tax Act before this court in view of the nature of proceedings U/Sec.138 of NI Act and also by virtue of Sec.118 and 139 of NI Act.
64. The accused has also taken a third defence to the effect that the name of the complainant do not finds a place on the bank memo and therefore, the complainant is not a holder in due course of the cheque and the complainant has misused the cheque. But, though this kind of bald defence taken by the accused is 35 C.C.No.27040/2018 appears to be more attractive, but on deeper scrutiny of the contents of bank memo vide Ex.P2 and the relevant provisions of NI Act and materials placed on record, it does not have any substance.
65. It is suggested to PW.1 that the account number mentioned in Ex.P2 is not belongs to him and he is not the holder in due course of the cheque and the document at Ex.P2 is not belongs to his bank account. But, all these material suggestions have been specifically denied by PW.1. Nothing is elicited in the cross- examination of PW.1 to show that the account number mentioned in Ex.P2 is not belongs to the complainant and the complainant is not the holder in due course of the cheque in question.
66. No doubt, it is true that the name of the complainant do not finds a place on the bank memo vide Ex.P2. But, the name of one Raghavendra Sahakara is mentioned in Ex.P2. But, it is not the defence of the accused that she has issued cheque in question either to Raghavendra Saharaka or to any third party. The account number mentioned in Ex.P2 is belongs to the complainant. The complainant has presented the cheque for encashment before his banker namely Indian Bank, Basavanagudi Branch, Bengaluru. It is an admitted fact 36 C.C.No.27040/2018 that the accused has issued the cheque in question to the complainant and not to anybody. The accused has admitted the issuance of cheque including her signature on the cheque and presentation of cheque before Indian Bank, Basavanagudi Branch, Bengaluru. The court has to look into the account number and name of the bank before which the cheque was presented. Moreover, the cheque was dishonoured for want of sufficient funds in the account of the accused and not for with an endorsement as 'Complainant is not the holder in due course of the cheque'. Under these circumstances, merely because, the name of the complainant is not mentioned on the bank memo vide Ex.P2, it cannot be said that the complainant is not the holder in due course of the cheque in question.
67. The accused has also taken a forth defence that the notice sent by the complainant has not been served upon her and therefore, the complainant has not complied the mandates of Sec.138(b) of NI Act. It is suggested to PW.1 that the notice vide Ex.P3 has not been served upon the accused and the signature found on Ex.P6 & P7 are not the signature of the accused. But, all these material suggestions have been specifically denied by PW.1. Nothing is elicited in the evidence of 37 C.C.No.27040/2018 PW.1 to show that the notice sent by the complainant has not been served upon the accused.
68. But, on the other hand, DW.1 has admitted that the house bearing old No.21 and new No.250 is belongs to her and she is having property bearing No.66 on Mishon Road, Bengaluru and the address mentioned on the complaint and notice is her correct address and her residential address is No.253, 9 th Cross, Sampangiramnagar, Bengaluru-27. It is also admitted by DW.1 that any letter addressed to the address mentioned on the complaint and on Ex.P6 & P7 would reach her and she and her husband are residing in house No.253. It is pertinent to note here that the complainant has sent the legal notice to the proper address of the accused. The accused has not disputed the address mentioned in the cause title of the complaint including notice and postal receipts and postal acknowldements. Under these circumstances, the notice sent by the complainant is deemed to have been served on the accused. Reference in this regard may be made to a provisions of Sec.27 of General Clauses Act.
69. On appreciation of entire oral and documentary evidence placed on record, it is found that the accused has issued a cheque vide Ex.P1 for Rs.10 38 C.C.No.27040/2018 lakhs to the complainant towards the legally recoverable debt of Rs.10 lakhs obtained by her on 07.10.2017 and on presentation of cheque for encashment before the Indian Bank, it was dishonoured for want of sufficient funds in the account of the accused vide Ex.P2. Therefore, the complainant got issued a legal notice vide Ex.P3 giving 15 days time to the accused to comply the demand made in the notice. But, the accused inspite of service of legal notice as per Ex.P6 & P7, has failed to pay the cheque amount and in fact, she has failed to reply the notice and therefore, the complainant has presented the complaint before the Court on 01.09.2018 which was well within time.
70. It is pertinent to note here that the document at Ex.P1 being a cheque raises the presumption under the provisions of Sec.118 and 139 of NI Act. The document at Ex.P2 being a bank endorsement also raises the presumption under the provisions of Sec.146 of NI Act. The document at Ex.P8 being an on demand promissory note and consideration receipt clearly establishes the loan transaction of Rs.10 lakhs between the complainant and the accused. The document at Ex.P3 to P7 being the notice, postal receipts and postal acknowledgments clearly establsihes the issuance of legal notice and also its service. The accused neither 39 C.C.No.27040/2018 disputed the issuance of cheque nor her signature on the cheque and promissory note and consideration receipt. Under these circumstances, the statutary presumptions under the provisions 118 and 139 of NI Act are available in favour of the complainant.
71. The accused has not only failed to examine an independent witnesses before the court, but also failed to produce the relevant documents including rent agreement before the court and also failed to elicit the material facts in the cross examination of PW1 and thereby the accused has faled to rebut the staturory presumptions available in favour the complainant under the provisions of section 118 and 139 of NI Act. The documents at Ex.D1 to D9 being the certified copy of the sale deed dated 18.01.2008, BSNL bills and Traffic Police Receipts do not probablize the defence taken by the accused or rebut the statutory presumptions available in favour of the complainant U/Sec.118 and 139 of NI Act or falsify the case made out by the complainant or falsify the oral evidence of PW.1 or falsify the documentary evidence at Ex.P1 to P9. Under these circumstances, there are no reasons to disbelieve or to discard the oral evidence of P.W.1 and the documentary evidence at Ex.P1 to P9.
40 C.C.No.27040/201872. Under these circumstances, there is some legal and considerable force in the submission of the learned counsel for the complainant that the accused has not disputed the issuance of cheque and promissory note and consideration receipt and her signature on the cheque at Ex.P1 and on demand promissory note and consideration receipt at Ex.P8 and thereby the accused has admitted about the issuance of the cheque in question for legally recoverable debt of Rs.10 lakhs which was dishonoured for want of sufficient funds in the account of the accused as per Ex.P2, but in spite of service of legal notice, the accused neither replied the notice nor make the arrangements to pay the cheque amount and the complainant has proved the guilt against the accused with legal evidence before the court, but the accused has failed to raise a probable defence and failed to prove the same before the court with legal evidence and the accused has failed to establish that the complainant has misused the cheque and thereby the accused has failed to rebut the statutory presumptions and therefore, the accused is liable for conviction U/Sec.138 of NI Act.
73. But, on the other hand, the arguments of the learned counsel for the accused that the oral evidence of 41 C.C.No.27040/2018 PW.1 and the documentary evidence at Ex.P1 to P9 do not establish the loan transaction of Rs.10 lakhs and the existence of legally recoverable debt of Rs.10 lakhs and the complainant has failed to prove the service of legal notice and thereby failed to establish the guilt against the accsued, but the accused has raised a probable defence and proved the same before the court by adducing the oral evidence of DW.1 and by producing the documentary evidence at Ex.D1 to D9 and also by eliciting the material facts in the evidence of PW.1 which clearly establishes that the complainant was the tenant under the accused who paid an advance amount of Rs.1,25,000/- to the accused and at the time of vacating the house in view of dispute between him and the husband of accused has demanded a signed blank cheque and pronote and consideration receipt and therefore, the accused has issued a signed blank cheque and pronote and consideration receipt and the complainant has falied to return the documents and has misused the cheque by filling the contents of cheque and the complainant is not the holder in due course of the cheque and notice also not served on the accused and the accused is not due for any amount and the complainant has not paid the loan amount to the accused and the accused has rebutted the presumptions 42 C.C.No.27040/2018 and therefore, the accused is entitled to an order of acquittal is not sustainable under law and therefore cannot be accepted and the decisions cited in this regard are also not applicable to the present facts and circumstances of the case.
74. Therefore, for the reasons discussed above, this court is of the considered view that the materials placed on record clearly establishes the guilt against the accused for the offence punishable U/Sec.138 of N.I.Act. Hence, I hold that the complainant has proved the guilt against the accused for the offence punishable U/s.138 of NI Act. Hence, I answer point No.1 in the 'Affirmative'.
75. POINT. No.2:- The provisions of Section 138 of N.I.Act provides punishment for imprisonment for a term which may be extended to two years or with fine which may extend to twice the amount of cheque or with both. In the present case, the accused and the complainant were known to each other and the accused has availed a loan of Rs.10 lakhs for business purpose and legal necessity. Therefore, considering the nature of loan transaction between the complainant and the accused including the facts and circumstances of the case and time taken for disposal of this case, this Court 43 C.C.No.27040/2018 is of the considered view that if the following sentence is awarded, then it would meet the ends of justice. Hence, in view of my findings on point No.1, I proceed to pass the following:-
O RDE R The accused is found guilty for the offence punishable U/s.138 of Negotiable Instruments Act.
Hence, acting U/sec.255(2) of Cr.P.C, the accused is convicted and sentenced to pay a fine of Rs.12,00,000/-(Rupees Twelve lakhs Only) in default of fine amount, she shall undergo simple imprisonment for One Year for the offence punishable under section 138 of N.I.Act.
Out of the fine amount collected from the accused, an amount of Rs.11,75,000/- (Rupees Eleven Lakhs Seventy Five Thousand only) shall be paid to the complainant as compensation U/s.357 of Cr.P.C. and the remaining fine of Rs.25,000/- shall be adjusted towards the cost of state expenses.
The bail bond of the accused shall be in force till the appeal period is over as contemplated under the provisions of Sec.437(A) of Cr.P.C.44 C.C.No.27040/2018
The cash security of Rs.10,000/- deposited by the accused vide Q.No.10784/2019 dated 21.09.2019 shall be refunded to the accused after appeal period is over with due identification.
Office to supply the copy of the Judgment to the accused forthwith at free of cost.
(Dictated to the stenographer, transcribed by her, print out taken by her, verified, corrected and then pronounced by me in the open Court on this the 13th April 2023).
(N.M.RAMESHA) XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Sri.Anand.R
2. List of documents exhibited on behalf of the Complainant:-
Ex.P.1 : Original Cheque.
Ex.P.1(a) : Signature of the Accused.
Ex.P.2 : Bank Memo.
Ex.P.3 : Copy of Legal Notice.
Ex.P.4 & 5 : Postal Receipts.
Ex.P.6 & 7 : Postal Acknowledgements
Ex.P.8 : On demand promissory note and
consideration receipt
Ex.P.9 : Complaint
45 C.C.No.27040/2018
3. List of witness/s examined on behalf of the Accused:-
D.W.1 : Smt.Sowbhagya
4. List of documents exhibited on behalf of the Accused:-
Ex.D.1 : C/c of Sale Deed dated 18.01.2008.
Ex.D.2 to 5 : BSNL Bills. Ex.D.6 to 9 : Receipts issued by the Bengaluru City Traffic Police.
(N.M.RAMESHA) XVI ACMM, Bengaluru City.46 C.C.No.27040/2018
13.04.2023 Judgment pronounced in open court, (vide separate order) ORDER The accused is found guilty for the offence punishable U/s.138 of Negotiable Instruments Act. Hence, acting U/sec.255(2) of Cr.P.C, the accused is convicted and sentenced to pay a fine of Rs.12,00,000/-(Rupees Twelve lakhs Only) in default of fine amount, she shall undergo simple imprisonment for One Year for the offence punishable under section 138 of N.I.Act.
Out of the fine amount collected from the accused, an amount of Rs.11,75,000/- (Rupees Eleven Lakhs Seventy Five Thousand only) shall be paid to the complainant as compensation U/s.357 of Cr.P.C. and the remaining fine of Rs.25,000/- shall be adjusted towards the cost of state expenses.
The bail bond of the accused shall be in force till the appeal period is over as contemplated under the provisions of Sec.437(A) of Cr.P.C.
The cash security of Rs.10,000/- deposited by the accused vide 47 C.C.No.27040/2018 Q.No.10784/2019 dated 21.09.2019 shall be refunded to the accused after appeal period is over with due identification.
Office to supply the copy of the Judgment to the accused forthwith at free of cost.
[ XVI ACMM, Bengaluru City