Bangalore District Court
Sri.H.Hombaiah vs Smt.Hemavathibai on 6 November, 2019
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 6th day of November - 2019
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.25716/2017
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Sri.H.Hombaiah,
S/o.Late.Venkataramaiah,
Aged about 75 years,
R/at No.231, 5th C Main,
REMCO Layout,
Vijayanagara 2nd Stage,
Hampinagara, Bengaluru-560 104.
(Rep. by Sri.T.P.Srinivasa, Adv.)
V/S
Accused : Smt.Hemavathibai,
W/o. Jagannatharao,
Aged about 48 years,
R/at. No.182, 2nd Floor,
6th Main, REMCO Layout,
Vijayanagara 2nd Stage,
Hampinagara, Bengaluru-560 104.
(Rep.by Sri.Sridhar.N, 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 : 06.11.2019.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
Judgment 2 C.C.No.25716/2017
JUDGMENT
The complainant has presented the instant complaint against the accused on 13.10.2017 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheque of Rs.1,85,000/-.
2. The factual matrix of the complainant case is:
The complainant and the accused are the permanent resident of the address mentioned in the complaint cause title.
The complainant and accused are known to each other more than 10 years. The accused approached the complainant and pleaded that, she is facing financial deficiency for her domestic necessity and requested the complainant for the hand loan of Rs.2,00,000/-.
Accordingly, he paid her on 09-02-2017 in the presence of witnesses.
The complainant contended that, on the receipt of the said money, the accused agreed to pay interest of the said loan amount at the rate of 1.5% per month and she got executed On demand promissory note in his favour and she promised to repay the said money within 6 months and also promised to pay the interest on monthly basis. The complainant requested the Judgment 3 C.C.No.25716/2017 accused to pay the interest as agreed, but she has least bothered to pay the interest.
The complainant has alleged that, as agreed, the accused, after lapse of 6 months he approached the accused and requested to repay loan along with interest, then the accused gave cheque bearing No.385121 dated 05.08.2017 for a sum of Rs.1,85,000/- drawn on Vijaya Bank, Moodalapalya Branch and requested some more time to pay the balance amount of Rs.15,000/- and up to date interest on the entire amount of loan of Rs.2,00,000/-. The accused instructed the complainant to present the cheque for encashment. At her instruction the complainant presented the cheque for encashment through his banker Bangalore City Co-operative Bank Limited, Chamarajpet Branch, Bangalore, but on seeing the endorsement dated 08.08.2017 he got shock as the said cheque came to be dishonoured, for the reason "Payment Stopped by Drawer". Thereafter, he requested the accused immediately to pay the amount covered under the cheque, she not least bothered to pay the same and his effort came to be went in vain. Hence, on 04.09.2017 he gave legal notice in tern accused gave untenable replay, she not paid the amount cover in the cheque. Hence, filed the present complaint.
Judgment 4 C.C.No.25716/2017
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 her counsel and obtained the bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to her, wherein, she denied the same and claimed to have the defence.
5. To prove the case of the complainant, he himself choosen to examined as PW.1 and got marked Exs.P1 to P9(d). That apart, to prove his case, the complainant got choosen to examined one V.Baburao as witness to filed affidavit evidence and examined as PW.2 and identified his signature at Ex.P9(b). The PW.1 and PW.2 were 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 accused denied the same and the answer given by her was recorded. In support of the defence, the accused herself was Judgment 5 C.C.No.25716/2017 examined as DW.1 and got marked Exs.D1 to D4 and also subjected for cross-examination by the advocate for the complainant.
7. I have heard the arguments of both side counsels.
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, he paid sum of Rs.2,00,000/- on 09.2.2017 as hand loan to the accused in presence of the witnesses?
2) Whether the complainant proves beyond reasonable doubt that, the question cheque at Ex.P1 bearing No.385121 dated 05.08.20174 sum of Rs.1,85,000/- drawn on Vijaya Bank, Moodalapalya Branch were issued by the accused for partial discharge of existence of legal recoverable debt payable to the complaiannt?
3) Whether the Complainant proves beyond reasonable doubt that the accused has committed offence punishable u/s.,138 of N.I.Act ?
4) What Order?
8. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Affirmative Point No.2 : In the Affirmative Point No.3 : In the Affirmative Point No.4 : As per final order, for the following:
Judgment 6 C.C.No.25716/2017
REASONS
UNDISPUTED FACTS
9. The fact that, the complainant and accused are known to each other residing in the same area is not in dispute. The fact that, the cause title address of complainant and accused as found in the complaint is not in dispute. The fact that, the complainant was retired employee of BHEL and got retirement from the service in the year 1999 is not in dispute. The fact that, father of the husband of the accused was also BHEL employee and who known to the complainant is not in dispute.
10. The fact that, the service of legal notice at Ex.P3 to the accused as per postal acknowledgement at Ex.P6 is not in dispute. The fact that, the accused caused reply notice to the complainant as per Ex.P7 is not is dispute.
11. The fact that, the questioned cheque belongs to the accused which came to be dishonoured at Ex.P2 is not in dispute.
The fact that, compliance of mandatory provision to maintain the present case is not in dispute.
12. POINT NOs.1 to 3: Since all these points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.
Judgment 7 C.C.No.25716/2017 The PW.1 to prove his case choosen to examined himself and filed affidavit by reiterating the complaint averments in toto, and produced the documents at Exs.P1 to P9(d), they are:
a) Ex.P1 is the cheque bearing No.385121 issued by the accused for sum of Rs.1,85,000/-
dated:05.08.2017, drawn on Vijaya Bank, Moodalapalya Branch, Bengaluru.
b) Ex.P1(a) is the alleged signature of accused.
c) Ex.P2 is the Bank Memo dated:08.08.2017.
d) Ex.P3 is the Legal Notice dated:04.09.2017.
e) Ex.P4 & P5 are the Postal receipts.
f) Ex.P6 is the Postal Acknowledgment Card.
g) Ex.P7 is the reply notice dated 18.09.2017 issued by accused through her counsel to the complainant counsel.
h) Ex.P8& P9 are the On demand promissory note and consideration receipt dated 09.02.2017executed by accused in favour of complainant and
i) Ex.P8(a) to P9(d) are the signatures of accused and witnesses.
13. The PW.1 and PW.2 were subjected to the cross- examination by the advocate for the accused. In support of his case the complainant through his counsel has produced the citation and relied upon same, it is;
a) AIR 2010 SC 1898
Judgment 8 C.C.No.25716/2017
14. In order to prove the defence of the accused, she herself choosen examined as DW.1 and produced the documents at Exs.D1 to D4. They are:
a) Ex.D1is the affidavit dated 13.06.2016 pertaining to the accused.
b) Ex.D2 is the NCR issued by Vijayanagar Police Station to the accused.
c) Ex.D3 is the stop payment intimation advice letter issued by Vijaya Bank to the accused and
d) ExD4 is the copy of reply notice dated 18.09.2017 issued by accused through her counsel to the complainant counsel.
The DW.1 was subjected to the cross-examination by the advocate for the complainant. Apart from lead defence evidence, the DW.1 through her counsel has produced the citation and relied upon same. It is:
a) Crl. Appeal No.636/2019
15. While appreciate the materials on records and evidence, this court has gone through the decisions stated supra apart from the other decisions.
16. To prove the case of the complainant, he himself chosen to examined as PW.1 and in order to prove his case, the complainant has choosen to examined one witness by name V.Baburao as PW.2, who choosen to filed affidavit evidence.
Judgment 9 C.C.No.25716/2017 Wherein, he contended that, the PW.2 knew the complainant and accused since 5 years. The complainant and father-in-law of the accused were friends and worked at BHEL Factory, Bengaluru, PW.2 specifically contended that, on 09.02.2017, when he went to the complainant's house at about 5.00 p.m. to meet his friend Dhananjaya, who is the son of complainant, at that time, complainant, accused, Venkateshaiah and G.Byraiah were present in the house. The complainant has paid Rs.2,00,000/- to the accused through cash, as loan and accused after counting the notes, got executed on demand promissory note and consideration receipt on the very same day in favour of complainant, in his presence as well as, the presence of others and Venkateshaiah signed as witness to the said On demand promissory note and consideration receipt and G.Byraiah also affixed his signature as scribe. The accused has promised to repay the said loan within 6 months on the interest at 1.5% per month.
17. After cross-examination of PW.1 and 2, the incriminating evidence made against the accused, was read over and explained to her as required under Section 313 of Cr.P.C., then she has denied very allegation made against her, as borrowing loan of Rs.2,00,000/- and issuance of questioned cheque for discharge of Judgment 10 C.C.No.25716/2017 loan of Rs.1,85,000/- and she stated that, the signature found on questioned cheque is not of her. She specifically stated that, about 3 years back, unsigned question cheque was lost, in that regard, she lodged complaint before the RPC Layout Police Station, Bengaluru and specifically contended that, she not borrowed the alleged loan nor issued the questioned cheque to the complainant for making any payment.
18. In that line, the accused herself choosen to examined orally as DW.1 on oath. Wherein in brief she stated that, she not borrowed the alleged loan of Rs.2,00,000/- from the complainant and for discharge of the said loan amount, in respect of portion of amount i.e., Rs.1,85,000/- she not issued questioned cheque to the complainant. On 12-06-2016, when she shifted her house from the first floor to second floor, her two wheeler R.C. Book, two cheque leaves and other documents were lost. In that regard, on 13-06-2016, she lodged complaint before the Vijayanagar Police Station and on the very same day, she gave instructions to her bank for making stop payment. Since, police have stated her to brought the affidavit, as to loss of cheques, hence, she got prepared the same and gave it to the said police as per Ex.D1. Thereafter, the said police on 15-06-2016 got issued acknowledgement as per Ex.D2. In that regard, she also gave Judgment 11 C.C.No.25716/2017 complaint to her banker as per Ex.D3 and the complainant based on the lost cheque of the accused, filed the present case and she is not liable to pay the amount mentioned in the cheque.
19. On going through the rival contentions of both the parties, it made clear that, based on the Ex.P1 cheque; the complainant has filed the present case. It made clear that, as per Sections 118 and 139 of Negotiable Instruments Act, the initial statutory presumption is to be drawn in favour of the complainant that, for discharge of existence of legally recoverable debt , the accused got issued questioned cheque, unless and until contrary prove. Therefore, it made clear that, the initial burden is on the accused to rebut the case of complainant by place contrary materials. Therefore, the evidence of accused is to be appraised at first instance, as it is burden on the accused.
20. On going through the rival contentions of both the parties, it made clear that, based on the complaint averments, the complainant immediately after receipt of bankers slip at Ex.P2 got issued legal notice at Ex.P3 to the accused. In turn, the accused has caused reply at Ex.P7. On going through Ex.P7, the accused has taken her probable defence at the first instance is to be appreciate. As per Ex.P7, the accused has denied the alleged Judgment 12 C.C.No.25716/2017 borrowal of loan of Rs.2,00,000/- and got issuance of questioned cheque for Rs.1,85,000/- for partial discharge of existence of debt and undertaking to pay balance of Rs.15,000/- including the upto date interest within 6 months. But accused has expressed her innocence as to the borrowal of alleged loan and issuance of questioned cheque to the complainant. That apart, she also specifically in her reply notice has contended that, there was no monetary transaction between the complainant and accused, the question cheque, along with vehicle RC and other documents were lost. In that regard, she claims to be lodged complaint. From which, it made clear that, at the first instance, the accused by way of gave reply at Ex.P7 has resisted the claim of complainant. The said defence discloses, during cross of PW.1 and PW.2, as well as in the oral evidence of DW.1. On going through the documentary evidence, the accused contended that, as police have instructed her to give affidavit, as to loss of cheques as well as the RC book, she prepared the Ex.D1 and gave it to the concerned police, in turn, the police have issued the acknowledgement at Ex.D2 and on the very same date at Ex.D3 and Ex.D4, reply notice given by the accused, wherein, she claims to be issued the intimation to the bank for making stop payment. Therefore, the bank authorities, as per Ex.P2 bankers slip got Judgment 13 C.C.No.25716/2017 dishonoured question cheque for the reason of stop payment. On going through Ex.D1 it discloses the date 13-06-2016, which is affidavit of the accused, were submitted before the police. No doubt, original affidavit is produced by the accused at Ex.D1 and that affidavit was prepared only for the purpose of submit the same before the jurisdictional police to receive the complaint.
21. On meticulous perusal of the Ex.P1, it made clear that, the questioned cheque bearing No.385121 and another cheque bearing No.385122 along with lost two wheeler vehicle RC claiming lost. It is significant fact to note that, Ex.P1 is dated 13.06.2016 much earlier to the questioned cheque dated 05.08.2017. Therefore, Ex.D1 is the vital document which discloses, the factum of lost about the questioned cheque along with another cheque and other vehicle document. The said document created the doubtful circumstances that, on or after 13.06.2016, the accused lost control over the questioned cheque. Therefore, she lodged complaint, in turn, the police have gave Ex.D2 acknowledgement dated 15-06-2016. Very particularly noted that, Vijayanagar Police Station had issued said acknowledgement. Wherein only mentioned, regarding lost of RC book. But Ex.D1 discloses lost on cheques and RC Books. In order to show that, the accused lodged complaint as to lost of Judgment 14 C.C.No.25716/2017 questioned cheque and another cheque, she has not produced any complaint copy etc. Therefore, Ex.D2 is not safe to relay upon as to lost of questioned cheque. Therefore, she requested to produce certain other document, as to, what precaution she took in respect missing of questioned cheques. Therefore, it requires to focus on documentary evidence at Ex.D3, which is none other than stop payment instruction given by the accused to her banker. The said endorsement given by the banker, which discloses about the cheque No.385121, but said document does not discloses the information as to lost another cheque bearing No.315822. If at all, as she contended in her affidavit at Ex.D1, she lost two cheques bearing Nos.385121 and 315822, definitely, said two cheque numbers should be mentioned in Ex.D3. But for the reasons better known to her except the questioned cheque number, another cheque number as not mentioned in Ex.D2. Therefore, it appears that, as contended by the complainant, the questioned cheque issued by the accused, after lapse of 6 months, from the date of borrowal of loan of Rs.2,00,000/- on 09.02.2017, perhaps, it may be on 05.08.2017 or in the month of August, 2017. As per say of complainant, cheque was issued on 05.08.2017, but bank intimation at Ex.D3, discloses the date on 13-06-2016, she gave complaint. In order to show that, the Judgment 15 C.C.No.25716/2017 present cheque was given by the accused on 05.08.2017 is to be proved by the complainant.
22. On going through the defence set out by the accused, it discloses that, she denied the very borrowal of loan from the complainant and taken up the specific defence that, the questioned cheque and other R.C.Book were lost, while she shift her house from 1st floor to 2nd floor. Hence, she lodged complaint to the police station on 13.06.2016 and she not gave the questioned cheque to the complainant. As discussed earlier, Ex.D1 affidavit discloses the date:13.06.2016 the questioned cheque and another cheque bearing No.385122 drawn on Vijaya Bank, Mudalapalya Branch, were lost along with R.C.Book, in order to obtain the duplicate R.C. Book, she submitted the said affidavit. Therefore, it made clear that, the Ex.D1 not submitted to the Police Station, but in order to secure the duplicate R.C.Book, she submitted the said affidavit. Regarding filing of that affidavit or lost of cheques as found in Ex.D1 dated:13.06.2016 is not been found in acknowledgment given by the police at Ex.D2. In order to show that, the accused gave complaint, she not produced the copy of the complaint in order to produce any endorsement, why she not secure the same from the concern police, though it was pertaining to the undisputed point of time. However, she relied Judgment 16 C.C.No.25716/2017 upon the Ex.D3, the stop payment instruction given by the accused to the bank on 13.06.2016.
23. On perusal of Ex.D3, it discloses the reason stop payment instruction gave by the accused not discloses, the instrument reported lost. So, it is very much clear that, she claiming R.C.Book and 2 cheques including questioned cheque only lost. In order to secure the duplicate R.C.Book from RTO, the accused has not produced any documentary evidence before this court, to substantiate, whether, the Ex.D1 was acted upon. Accordingly, Ex.D2 already discussed, does not discloses about the lost of questioned cheque. The Ex.D3 discloses, the instrument reported lost, the accused not gave copy of the complaint given by her. However, it made clear that, she only stated questioned cheque was lost. On close perusal of the defence evidence of the accused, it discloses, she simply denied the borrowing of loan, as alleged by the complainant and denied the issuance of questioned cheque to the complainant. She not specifically stated about the execution of Exs.P8 and P9 which are none other than On demand promissory note and consideration receipt relied by the complainant, as to passing of consideration of Rs.2 lakhs from the complainant to the accused.
Judgment 17 C.C.No.25716/2017
24. During the course of cross of DW.1, she denied the borrowal of loan of Rs.2 lakhs from the complainant and undertakes to repay the same within six months from the date of borrowal and finally she gave questioned cheque dated:05.08.2017 at Ex.P1 for its repayment. Even, during her cross-examination, it was clearly suggested that, she received the money in the presence of witnesses found in Exs.P8 and P9, which are On demand promissory note and consideration receipt. The DW.1 categorically deposed that:
"¤¦.1 ¸À» £À£ÀßzÉ, CzÀgÉ ZÉPï£ÀÄß £Á£ÀÄ ¨Àswð ªÀÄÁr®è. ¤r.1 ¥ÀæªÀiÁt ¥ÀvÀæzÀ JgÀqÀÄ PÀqÉ EgÀĪÀ ¸À» £À£ÀßzÉÃ. ¤¦.8(J) ªÀÄvÀÄÛ 9(J) C£ïrªÀÄÁåAqï ¥Àæ£ÉÆÃmï ºÁUÀÆ ºÀt ¸ÀAzÀ gÀ¹Ã¢UÀ¼ÀÄ ºÁUÀÆ ZÉPï£À°ègÀĪÀ ¤¦.1(J) £À£Àß ¸À» ºÁUÀÆ, ¤r.1 gÀ°ègÀĪÀ £À£Àß JgÀqÀÄ ¸À», MAzÉà jÃw EzÉ JAzÀgÉ ¸ÀjAiÀÄ®è, ¸ÁQë D ¸À»UÀ¼ÀÄ £À£ÀßzÉà JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ."
25. The DW.1 clearly admitted the signature found in the cheque at Ex.P1(a) is of her and she stated not filled. She clearly admitted the signature found in her affidavit as to her. More particularly she categorically admitted the signature found in On demand promissory note and consideration receipt at Exs.P8 and P9 is of her. Then it is her to demonstrate that, on which Judgment 18 C.C.No.25716/2017 compelling circumstances, she got executed the On demand promissory note and consideration receipt at Exs.P8 and P9. The accused admitted her signature at Exs.P8(a) and P9(a).
26. On meticulous perusal of the said documents, it clearly discloses, the unilateral document executed by the accused for having receipt of cash of Rs.2 lakhs from the complainant on 09.02.2017. Though, the said document does not bare the signature of the complainant, but discloses the admitted signature of the accused as well as the signatures of the witnesses by name V.Venaktesh and V.Babu. The Exs.P8 and P9 clearly mentioned about the passing of consideration of Rs.2 lakhs from the hands of complainant to the accused, even, the accused wherein admitted, agreed to pay the said loan with interest at 1 ½ % per month. During the course of cross of PW.1, he deposed that, the said document was written by the scribe by name B.Byraiah. In order to prove the said execution of passing of consideration from the complainant to the accused at Exs.P8 and P9, he choosen to examined one of the witness by name V.Babu, who is the friend of his son by name Dhananjaya as PW.2.
27. The PW.1 successfully withstood for cross-examination, likewise PW.2 successfully withstood for cross-examination by Judgment 19 C.C.No.25716/2017 stating, accused borrowed the loan of Rs.2 lakhs on 19.02.2017 by executing those documents. During the course of cross of PW.1, he denied the suggestion made by the accused as to the denial of borrowal of loan of Rs.2 lakhs, but he specifically stated, accused by receiving the loan got executed Exs.P8 and P9 in his favour. In his cross-examination there was simply denial of the Exs.P8 and P9, as it does not bare the signature of complainant hence not valid, but by suggesting so, nothing has whispered as to the genuineness of the Exs.P8 and P9, thereby, the accused has failed to disprove the execution and issuance of Exs.P8 and P9 - On demand promissory note and consideration receipt in favour of complainant on 09.02.2017. It also significant fact to note that, to prove the contention of the complainant examined one witness by name V.Baburao as PW.2, he also clearly stated about the passing of consideration of Rs.2 lakhs from the complainant to the accused in the presence of him and another witness by name Venkateshaiah. He was subjected for cross- examination, wherein, on the very same day, the PW.1 went to the house of complainant to see his son by name Dhananjaya is undisputed by way of suggestion which runs thus:
Judgment 20 C.C.No.25716/2017 "£Á£ÀÄ zÀs£ÀAdAiÀÄ gÀªÀgÀ£ÀÄß ºÀÄqÀÄQPÉÆAqÀÄ D ¢£À ºÉÆÃzÁUÀ, DvÀ ¹QÌgÀ°®è. §½PÀ £Á£ÀÄ ªÁ¥À¸ï ºÉÆÃzÉ£ÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è."
28. On going through the said cross-examination and suggestion of the accused, it clearly manifest that, the PW.1 was present in the house of complainant on 09.02.2017, but is him to disclose that, since, Dhananjaya was not there in the house of complainant, the accused went out from his house without evidencing the alleged loan transaction, but nothing has whispered, though PW.2 was subjected for cross-examination. He withstood his contention, as to his appearance on 09.02.2017 in the house of complainant at the time of alleged passing of consideration of Rs.2 lakhs from the complainant to the accused. Therefore, as discussed above, the complainant coupled with the pleading, so also by withstood successfully for cross-examination and producing the evidence of PW.2 and the documentary evidence, successfully established the passing of consideration of Rs.2 lakhs from him to the accused, as urged in the complaint.
29. No doubt, the accused has attack on the contention of the complainant, he had no money to pay Rs.2 lakhs to the accused and questioned his financial capacity. No doubt, the complainant Judgment 21 C.C.No.25716/2017 was retired employee at BHEL and receiving pension is not in dispute. The fact that, the daughter-in-law of the complainant by name Rajeshwari sold her property in the year 2012 and she kept the said money in the house of complainant, in the said money complainant claimed to be paid the loan to the accused. The receiving of money by Rajeshwari by sold her property in the year 2012 is not in dispute. The PW.1 has stated that, the said property was sold for Rs.14 lakhs and she is residing in the house of complainant. Therefore, she gave the said money to him and the said money was with him, out of which, Rs.2 lakhs were paid to the accused on 09.02.2017. Admittedly, he deposed, he not retained the said money from 2012 to 09.02.2017. However, it discloses that, by virtue of sold the property, the complainant's daughter-in-law gathered money is not in dispute. The said daughter-in-law was residing with the complainant is not in dispute.
30. Under such circumstances, whatever the sale proceeds, so she received was kept in the house of complainant is also not in dispute. In order to show that, as on 09.02.2017, the complainant had requisite fund of Rs.2 lakhs, he proved by way of examining PW.1. She admitted signature of the Exs.P8 and P9, which are none other than On demand promissory note and consideration Judgment 22 C.C.No.25716/2017 receipt. Unless, received any money from the complainant, what was the compelling circumstances to the accused to got execute the singed On demand promissory note and consideration receipt on 09.02.2017 is also not been disproved by the accused. Therefore, the Exs.P8 and P9 are the prima facie documents, which reveals passing of consideration of Rs.2 lakhs from the complainant to the accused, but the accused without any valid reasons has denied the same. Therefore, the complainant has successfully proved the possession of money and passing of consideration of Rs.2 lakhs in favour of the accused. Under such circumstances, there is no substance in the probable defence of the accused questioning the financial capacity, in view of the admitted signature and document is available on record.
31. If at all, the accused not borrowed loan from the complainant by executing Exs.P8 and P9, definitely, she must have say her explanation, why the complainant possessed her singed document, but in that regard, no explanation was forth coming from the side of complainant. The complainant has stated that, as agreed within six months, the accused has not repaid money, when he asked, the accused gave cheque dated:05.08.2017. He also clearly stated that, one day earlier to the said date, she gave the cheque. The accused admitted the Judgment 23 C.C.No.25716/2017 signature at Ex.P1(a), as appreciated above. How it was possible to lost the singed separate two cheque leaves bearing No.385121, which is subjected matter of the present case and another cheque bearing No.385122 is not satisfactorily explained. No doubt, the questioned cheque bares the date:05.08.2017 stood in the name of complainant mentioning the amount of Rs.1,85,000/-. The accused has contended that, on 13.06.2016, she lost the said cheques, hence, she gave stop payment instruction as per Ex.D3 to the bank. It is pertinent to note that, the stop payment instruction was made on 13.06.2016.
32. It is pertinent to note that, if at all, she shifted her house from the 1st floor to 2nd floor, was it possible to lost only few cheques out of the other cheques is also created doubt. She must have disclose what happened to the other cheques, then the number cited in Ex.D3, but she gave instruction to the bank stating instrument was lost. If it was lost, how it was possible to came in to the hands of the complainant, that too, when the complainant possessed the Exs.P8 and P9 - On demand promissory note and consideration receipt. If at all, the complainant possessed only the questioned cheque, as per Ex.D3, if it was lost, definitely, how the Exs.P8 and P9 - On demand promissory note and consideration receipt, which bares Judgment 24 C.C.No.25716/2017 the signatures of the accused came in the possession of the complainant, it clearly discloses that, to the safer side, to avoid the repayment to the complainant, perhaps the accused could have gave instruction to the bank stating, the same could have lost. Therefore, inspite of created doubt on Ex.D3 - complaint give to the bank, it does not support the probable defence of the accused. The very act of the accused denying the borrowing of loan and execution of the On demand promissory note and consideration receipt including issuance of cheque, it appears that, though complainant has validly possessed the same in respect of the amount of Rs.2 lakhs pass on from him to the accused, in order to avoid its repayment the accused could have lodged the complaint earlier and make use as defence in the present case. Therefore, the Ex.D3 would not supports the probable defence of the accused.
33. Though the accused caused reply at the earliest point of time as Ex.D4 to the complainant, it cannot be sufficient to disprove the claim of complainant. The passing of consideration is proved by the complainant as per Exs.P8 and P9 - On demand promissory note and consideration receipt. Likewise, it also made clear that, for repayment of the said loan amount, the accused got issued the questioned cheque, but in order to avoid repayment, Judgment 25 C.C.No.25716/2017 before she borrow loan from the complainant, she lodged complaint on 13.06.2016 as per Ex.D3. Even, she not disclosed, though she gave instructions to the bank, as instrument was lost on 13.06.2016, it was not a public place, but it was in the same building, when she shifted from the house from 1st floor to 2nd floor. Therefore, it made clear that, at least after it was trace out, she could have been informed to the bank that, the lost cheques were found. Why the said lost cheque after gave the stop payment instruction at Ex.D3 were found by the accused, then in respect of the transaction held at Exs.P8 and P9 gave them to the complainant is also not been ruled out, though the accused has not satisfactorily demonstrated the issue of probable defence.
34. Any how, as discussed above, the complainant has successfully proved the passing of consideration of Rs.2 lakhs from his hands to the accused and in turn, she gave the questioned cheque for Rs.1,85,000/- at Ex.P1. The PW.1 pleaded and stated that, at the time of issue questioned cheque, she told him that, she had only that much amount in the account and rest of the amount including interest would be return. From which, it discloses that, in respect of payment of Rs.1,85,000/-, accused gave the cheque and when presented it for encashment, the bank has gave the endorsement stating, payment stopped by drawer.
Judgment 26 C.C.No.25716/2017 Though, caused legal notice, she not paid the amount, but caused reply with untenable grounds and though appeared in this case and protracted the matter, she failed to demonstrate her probable defence.
35. As discussed above the complainant 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 her improbable defence. Contrary, the PW.1 has established his case beyond the reasonable doubt through oral as well as documentary evidence.
36. The complainant has proved the guilt of the accused beyond the reasonable doubt by furnishing the clear, clinching and linking evidence. Therefore, it is the considered opinion of this court that, the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. Therefore, the accused is to be convicted by imposing the cheque amount as fine. If the accused failed to pay the said amount within appeal period, as default sentence, she shall undergo simple Judgment 27 C.C.No.25716/2017 imprisonment for 06 months. Out of the said fine amount, sum of Rs.1,75,000/- shall be payable to the complainant as compensation and remaining amount of Rs.10,000/- shall be payable to the state as fine amount. Accordingly, if the accused fails to pay the whole fine amount within appeal period, the accused shall undergo simple imprisonment for 06 months. Thereby, one more opportunity has provided to the accused to 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 to 3 are answered in the Affirmative.
37. Point No.4: In view of my findings on point Nos.1 to 3, 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 Judgment 28 C.C.No.25716/2017 Instruments Act and sentence to pay fine of Rs.1,85,000/-.
Out of the said fine amount, sum of Rs.1,75,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount of Rs.10,000/- shall be payable to the state as fine amount.
In default of pay the fine amount, the accused shall under go simple imprisonment for 06 (Six) 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 6th day of November
- 2019) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : H.Hombaiah PW.2 : V.Baburao Judgment 29 C.C.No.25716/2017
List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque
Ex.P1(a) : Signature of accused
Ex.P2 : Bank endorsement
Ex.P3 : Office copy of legal notice
Exs.P4 & P5 : Postal receipts
Ex.P6 : Postal Acknowledgment card
Ex.P7 : Reply notice
Exs.P8 & P9 : On demand promissory note and
consideration receipt
Exs.P8(a) to P9(d) : Signatures of accused and witnesses
List of Witnesses examined on behalf of the defence:
DW.1 : Hemavathi Bai List of Exhibits marked on behalf of defence:
Ex.D1 : Affidavit
Ex.D2 : NCR
Ex.D3 : Stop payment letter issued Vijaya Bank
Ex.D4 : Copy of reply notice
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 30 C.C.No.25716/2017
06.11.2019.
Comp -
Accd -
For Judgment
Judgment pronounced in the open court vide separate order.
***** 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.1,85,000/-.
Out of the said fine amount, sum of Rs.1,75,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount of Rs.10,000/- shall be payable to the state as fine amount.
Judgment 31 C.C.No.25716/2017 In default of pay the fine amount, the accused shall under go simple imprisonment for 06 (Six) 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.
Later, the counsel for convictee is present and filed the application under Section 424 of Cr.P.C. seeking for dispense the judgment till appeal period. Hence, application is allowed.
Sentence passed above is dispensed till appeal period.
The convictee shall execute the
personal bond for sum of Rs.1,85,000/-as
per the judgment.
Office is hereby directed to take
bond.
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.