Bangalore District Court
Sri. Ramu M vs Smt. Geetha M on 30 December, 2022
KABC0C0005842021
IN THE COURT OF XXXIII ADDL. CHIEF
METROPOLITAN MAGISTRATE, MAYO HALL UNIT,
BENGALURU
: PRESENT :
M.Vijay, BAL, LLB.
XXXIII ADDL.CHIEF METROPOLITAN MAGISTRATE,
BENGALURU.
DATED THIS THE 30TH DAY OF DECEMBER, 2022.
C.C.NO.50169/2021
COMPLAINANT : Sri. Ramu M.
S/o. Murugan ,
Aged 44 years, R/o No.36,
2nd 'B' Cross 11th main Kalkere,
Bangalore560083.
Vs.
ACCUSED : Smt. Geetha M.
W/o Sai Prasad Rao,
Aged about 47 years,
Old No.132/6 New No.14., 4th cross
13th main Kodihalli,
Bangalore560008.
JUDGMENT
The complainant has filed this private complaint U/s.200 of Cr.P.C., against the accused for the offence punishable U/s 138 of Negotiable Instrument Act.
2C.C.No.50169/2021
2. The factual matrix of the case are as follows: The complainant averred that, the accused is well acquaintance with him, from several years, on this acquaintance, the accused allegedly approached him for the hand loan of Rs.3,00,000/ in the 1 st week of June 2020, accordingly, considering the urgency, he allegedly advanced amount of Rs.3,00,000/ to the accused by way of cash on 15.06.2020, on it receipt, the accused promised him to repay it within 4 months and issued 2 post dated cheques bearing No.000165 dated 24.08.2020 and 000167 dated 26.08.2020 for sum of Rs.1,50,000/ each, drawn on HDFC Bank, accordingly, as per the instructions of the accused, the complainant claims to have presented first cheque thricly on 20.04.2020, 09.10.2020, 23.11.2020, but, all the 3 times cheque was got bounced initially for "funds insufficient" and later for payment stopped by the drawer, likewise, he claims to have presented 2nd cheque firstly on 08.10.2020, but, cheque was came to be dishonored for "funds insufficient"
secondly, for "payment stopped by the drawer" on 23.11.2020.3
C.C.No.50169/2021
3. Further, the complainant claims to have demanded the accused for payment of cheques amount in pursuance of dishonor of both the cheques on 27.11.2020 through RPAD, same was served upon the accused as per postal track consignment, despite of it service, neither the accused paid the cheque amount nor replied to his notice accordingly, alleged that, accused has committed an o/p/u/s 138 of N.I Act, accordingly, prays to convict the accused in accordance with law.
4. Based on the complaint, the sworn statement affidavit, the documents etc., the court took cognizance of an o/p/u/s.138 of N.I. Act by following the guidelines of Apex Court issued in Indian Bank Association case and ordered to be registered a criminal case against the accused for the o/p/u/s. 138 of N.I. Act.
5. In pursuance of summons, the accused appeared through her counsel, she was enlarged on court bail, further, substance of plea was recorded, the accused pleaded not guilty and she claimed to be tried, the complainant in order to prove his case got examined as P.W.1 and placed reliance on Ex.P1 to P10. Upon closure 4 C.C.No.50169/2021 of complainant side evidence, the court examined the accused U/s 313 of Cr.P.C, the accused denied the incriminating materials on record, got examined herself as DW1 placed reliance on Ex.D1 to D3.
6. Heard both the sides, that apart, the counsels of the both the parties have filed their separate written submission, further, the complainant placed reliance on decision of AIR 2018 SC 3601, on the other hand the accused relied upon Rangappa Vs. Mohan, Krishnajanardhan Bhat Vs. Dhattathraya Hegde, Jhon K. Abraham Vs. T.M. Varghese.
7. Perused the materials on record, the following points arise for my determination.
Whether the complaint proves beyond all reasonable doubt that, accused has committed an o/p/u/s 138 of Negotiable Instruments Act?"
What Order?
8. My findings to the above points are follows;
Point No1: In the Affirmative.
Point No.2: As per final order for forgoing;
5C.C.No.50169/2021 REASONS
9. POINT No:1: The accused denied the alleged borrowal of Rs.3,00,000/ from the complainant on 15.10.2020 as well as issuance of cheques bearing No.000165 dated 24.08.2020, 000167 dated 26.08.2020 for sum of Rs.1,50,000/ each infavour of the complainant, however, she contended that, her 3 signed blank cheques has been stolen by the accused and two of them has been misused and filed this false case, accordingly, she claims to be an innocent, but, she does not disputes the service of demand notice, as such, there is no dispute with regard to compliance of Sec.138(a) to
(c) of N.I Act, however, the accused disputed the existence of legally enforcible debt, as well as issuance of cheques in question infavour of the complainant for alleged sum, therefore, the burden is on the complainant to prove both the existence of debt as well as receipt of cheques in question towards discharge of legally enforcible debt.
10. the complainant reiterated the complaint averments in his examination chief affidavit that, he was working as 6 C.C.No.50169/2021 network provider, accordingly, he provided Hath way Network Services to the accused, as such, he got acquaintance with the accused from last 10 years, on this acquaintance, accused approached him for hand loan of Rs.3,00,000/ to meet her financial commitments, accordingly, he paid sum of Rs.3,00,000/ to the accused on 15.06.2020, on it receipt, on the same day the accused issued two post dated cheques in his favour for sum of Rs.1,50,000/ each i.e., Ex.P1 and 2, but, on it presentation both initially came to be dishonored for "Insufficient Funds" and then for payment stopped by the drawer, despite service of demand notice, the accused failed to pay the cheques amount, the PW1 in support of his claim relied upon 2 cheques, 5 bankers memo, copy of legal notice, postal receipt and postal track consignment, as held supra, the accused does not disputed the service of legal notice.
11. However, in her cross examination she claims to have issued reply to the notice of the complainant, but, failed to produced the reply notice, accordingly, it can be easily inferred that, accused doesn't replied to the demand notice, further, in the cross examination the accused 7 C.C.No.50169/2021 posed several questions with regard to how the complainant got acquaintance with the accused, income and source of income of the PW1, when did he advance the loan and what mode, for that, the PW1 categorically stated initially he was doing cable network, later on he served as a supervisor in Hathway Cable and Data Cable, out of this he was drawing salary of Rs.30,000/ p.m, in addition to that, he has rental income, out of these sources the PW1 claims to have paid Rs.3,00,000/ to the accused on 15.02.2020 by way of cash, so, despite of cross examination the PW1, nothing has brought on record that, the claimed financial transaction not been held.
12. Further, the accused contended by the way of suggestion that, the PW1 has allegedly stolen Ex.P1and P2 from her house, when, he came to settled the network issue at her home and denied the borrowal of Rs.3,00,000/, but, on her very suggestion, it is crystal clear that, Ex.P1 and P2 and signature found thereon is of the accused so, though the accused denied the financial transaction as well as issuance of cheques towards discharge of alleged debt, it is required to be presumed 8 C.C.No.50169/2021 that, cheques in question drawn by the accused for consideration, once, the accused admits cheques related to her account and admit the signature on the cheques as per Sec. 118(a) r/w 139 of N.I Act, as it is mandatory presumption shall be drawn infavour holder of the cheque as such, at this stage, it is worth to note decision of Hon'ble Apex Court between Rangappa v/s Mohan;
"Once the cheque relates to the account of the accused and he accept and admit the signature on the said cheque, then initial presumption as contemplated under Sec.139 of N.I. Act has to be raised by the court in favour of the complainant. The presumption referred to in Sec.139 of N.I.Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption."
13. Accordingly, the initial presumption has been drawn in favour of the complainant that, accused has drawn Ex.P.1 and 2 cheques for consideration of Rs.3,00,000/. However, it is a rebutable presumption, therefore, the onus is on the accused to rebut the presumption that the 9 C.C.No.50169/2021 cheques in question doesn't drawn by her for any consideration and the claimed debt didn't exist. The standard of proof for rebutting the presumption is preponderance of probability, but, strict proof not necessary.
14. The accused in order to discharge the onus, got examined herself as DW1 and contended that, she was doing chit business from last 15 years, she availed Internet services from the complainant, accordingly, on this acquaintance, the complainant had subscribed chits with her, due to lock down, she faced financial problems to settled the amount to her subscribers, but, the complainant demanded to pay the double the amount, in this regard, there were an altercation between them, accordingly, the complainant used to come her house frequently for settlement of Internet issue on one such of his visits the complainant illegally stolen her 3 signed blank cheques kept in her house, she came to know it, when the complainant presented all the 3 cheques for encashment of Rs.1,50,000/ each out of them Ex.P1 and 2 cheques have been misused and filed this false case, In support of her defence, she relied upon her statement of 10 C.C.No.50169/2021 account Ex.D1, chit register and pendrive consist of conversation between her husband and the complainant with regard to settlement of chit amount, however, the complainant denied the chits transactions with the accused, to substantiate the same the accused produced Ex.D3 chit register book, but, the accused admitted that, she doesn't have license to carryout chit business and also the counsel for the accused tried to confront the signature allegedly belongs to the complainant on Ex.D3 to prove that, complainant had subscribed the chit, but, the complainant categorically denied, therefore, except marking the chit register, the accused failed to examine other chit members, subscription, receipt or the signature of the accused to prove that, the complainant had subscribed chit with her, therefore, in absence of proof signature and the contents Ex.D3, mere marking of it , does not comes to the help of accused, unless and until proof of its contents that, the complainant was one of the subscriber of the chit, therefore, the notarized copy of chit register cannot be acceptable for proof of chit transaction run by the accused and the complainant herein was one of her subscriber.
11C.C.No.50169/2021
15. Further, the accused in order to prove the existence of chit transaction between her and the complainant has produced pendrive i.e., an electronic record allegedly contained the conversation between complainant and husband of the accused, court examined the conversation it is admittedly not between the complainant and the accused, it is allegedly between the complainant and husband of the accused, same is denied by the complainant, when such being the case, the accused required to prove the voice of the complainant, but, not produced evidence of an expert, moreover, the conversation between 3rd party and the complainant which cann't be considered for the fact in issue or question, since, it is not the case of the accused that, she was jointly doing chit transaction with her husband, accordingly, Ex.P2 pendrive containing the audio conversation between complainant and husband of the accused is not a relevant piece of evidence.
16. Further, the accused by relying upon Ex.D1 vehemently stated that, the complainant had stolen her 3 cheques, out of them, Ex.P1 and 2 cheques have been misused by falsely claiming that, she issued 2 post dated 12 C.C.No.50169/2021 cheques for sum of Rs.1,50,000/ each, as relevant entry in Ex.D1 clearly proves her contention that, the complainant has stolen her 3 cheques from her house, however, in the cross examination it is elicited that, admittedly, she has not taken legal action against the accused for alleged stolen of her cheques, further, in contrary to her contention, the accused suggested in the cross examination of PW1 that, she issued 2 cheques to the complainant towards balance of chit prized amount out of them, one cheque has been issued to one Harish, so, the accused taken 2 different contentions with regard to issuance of cheque in question i.e., she only suggested she had issued her 2 cheques infavour of the complainant towards balance of chit prize amount, in contrary to her own contention she improved during the course of her chief examination that, her cheques have been stolen by the complainant, which is quite contrary to her contention and it is detrimental to her defence, since, both the contentions contradictory to each other and there is no admissible evidence on record to prove that, the complainant had subscribed chit with her and also admittedly, she has not taken any legal action to substantiate stolen of her cheques by the complainant, in 13 C.C.No.50169/2021 absence any action, it can be safely inferred that, the defence of the accused is nothing but an after thought to escape from the liability.
17. Further, though she claims to have taken legal action, by issuing stop payment instruction to her banker, but, admittedly, the cheques in question initially were dishonored for funds insufficient twice by knowing the same, the accused issued stop payment instruction, but, what for she issued stop payment instruction is material for consideration, so, though she orally claimed that, cheques have been stolen by the complainant, but, she failed to produced letter issued to her banker to prove, for what reason she requested to stop the payment, which is relevant to be considered, because, for consideration of the defence that, the complainant stolen her cheques nor she had issued these cheques towards balance of chits amount, firstly, the accused must be proved the sufficient balance in her account, in other words, she has to prove that, the cheques in question were not dishonored for "paucity of funds", but, for other reasons, at this stage, it is worth to note decision of Hon'ble Apex Court between Hon'ble Apex Court in M/s MMTC Ltd., and another 14 C.C.No.50169/2021 V/S Medchil Chemicals and Pharma Pvt. Ltd., held that, "Even though the cheque dishonored by reason of stop payment instruction an offence under section 138 could still be made out. It is held that, the presumption U/S 139 is attracted in such a case also the authority shows that, even in the cheque is dishonored by reason of stop payment instruction by virtue Sec.139 the court as to presume that, the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. Off course this is a rebuttable presumption. The accused can thus show that the stop payment instruction were not issued because of insufficiency or paucity of funds if the accused shows that in his account there was sufficient funds to clear the amount of cheque at the time of presentation the cheque for encashment at the drawer bank and that stop payment notice had been issued because of other valid causes including that there was no existing that or liability had been issued because of other valid cause including that there was no existing debt or liability at the time of presentation of cheque for encashment, then an o/p/u/s 138 would not be made out".
15C.C.No.50169/2021
18. So, the Ex.D1 statement of account produced by the accused clearly stands proved that as on the date of cheque there was no sufficient balance in her account to honor the cheques, when such being the case, the stop payment instruction given by the accused subsequent to dishonor of cheque in question twicly for "Insufficient Funds" would clearly shows that, the accused with the malafied intention had issued stop payment instruction, even though there was no balance sufficient to honor the cheques in question.
19. Further, the learned counsel for the accused argued by referring to Ex.D1 statement of account that, the complainant has presented totally 3 cheques which clearly substantiate the defence of the accused that, the complainant has stolen the cheques of the accused and there is no explanation for another cheque that, what for and how the cheque of the accused presented by the complainant, however, the fact of presentation of cheque bearing No.000164 not been suggested by the accused during the course of cross examination of PW1, moreover, though the complainant presented the cheque bearing No.000164 for Rs.1,50,000/, but, same was not 16 C.C.No.50169/2021 encashed, as held supra, the accused not at all posed questions to the complainant with regard to the cheque bearing No.000164, further, the complainant specifically stated that, the accused had several financial transactions with him, when such being the case mere possession of another cheque bearing No.000164 other than the cheque in question does not ipso facto ground to believe that, the complainant has stolen her 3 cheques, and the present transaction is illegal or not existence, hence, not tenable.
20. That apart, the counsel for the accused raised a point with regard to financial incapability of the complainant by referring to the admission that, the monthly salary of the complainant was Rs.30,000/ from network business, but, to substantiate income complainant has not produced any document, therefore, in absence of proof with regard to income and source of income , the advancement of loan is doubtful in nature, which is required to e proved by the complainant, when the accused challenged the financial capacity, in view of the decision of Hon'ble Apex Court between the Krishna Janardhan Bhat Vs. Datthathraya G.Hegde and Jhon K. 17 C.C.No.50169/2021 Abraham Vs. T.M. Varghese and another, however, though the accused asked the PW1 about income and source of his income, but, accused does not denied the financial capacity and sources of income to the complainant during the course of cross examination of PW1, for the first time, during the course of argument the accused raised this point, but, the accused admitted occupation of the complainant that, the complainant was working as a supervisor in Hathway Internet and Data, so, complainant is salaried man, further, the accused only contended that, complainant has paid Rs.3,40,000/ chit amount which clearly shows that, the financial capability of the complainant, the accused not brought out any thing on record to show that, complainant is not having income or the complainant himself in debt to others, when such being the case non production of document by the complainant for proof of income and financial capacity is not fatal, in view of very contention of the accused that complaint had paid sum of Rs.3,40,000/ towards chit amount and admission about the occupation of the complainant, hence, I do not found financial infirmity of the complainant, accordingly, not tenable, the 18 C.C.No.50169/2021 decisions relied by the accused are over ruled decisions, therefore, not applicable to the case in hand.
21. So, considering the entire material on record, the accused has taken multiple defence with regard to how the cheques in question gone in to the hands of the complainant, firstly, in the cross examination of PW1, she claims to have issued Ex.P1 & 2 cheques towards balance chits prized amount, on the contrary, she has taken another contention that, her cheque have been stolen by complainant, but, till date she has not taken any legal action i.e., approaching the Police firm alleging the stolen of her cheques by the complainant, however, to prove her defence she claims to have issued stop payment instruction to her banker, but, admittedly, she issued that instruction soon after presentation of both the cheques twicly by the complainant, moreover, as per Ex.D1 admittedly accused does not had sufficient balance in her account as on the dates of cheques, when such being the case her defence that, soon after knowing the stolen of the cheques by the complainant she issued stop payment instruction cannot be acceptable, when there was no sufficient balance in her account as on the date of her 19 C.C.No.50169/2021 instructions to banker, so, as held supra, to consider the defence, the accused must prove sufficient balance in her account as on the date of her cheques to believe that, the complainant had stolen her cheques, but, as per Ex.D1 there was no balance sufficient to honor the cheques at any point of time, in absence of that, the accused failed to probablise his defence that, complainant had stolen her cheques and she does not have financial transaction with the complainant on 15.06.2020, in view of failureto brought out the probable material the accused utterly failed to rebut the presumption drawn infavour of the complainant, as such, the complainant proved the existence of debt of Rs.3,00,000/ borrowed by the accused on 15.06.2020 as well as issuance of cheque towards clearance of debt of Rs.3,00,000/, accordingly, the accused is found guilty of o/p/u/s 138 of N.I. Act.
22. So, far as sentence and compensation is concern, an o/p/u/s.138 of N.I. Act, is a civil wrong and compensatory in nature, punitive is secondary, considering, the above settled principal of law with facts and circumstances of the case, which clearly reveals that, it is hand loan transaction, complaint does not claim 20 C.C.No.50169/2021 interest on it, as such, it is an interst free loan or friendly loan, therefore considering the nature of transaction, duration of pendency, litigation expenses, I am opinion that, if sentence of fine of Rs.3,80,000/ is imposed that would meet the ends of justice, accordingly, the accused is hereby sentenced to pay a fine of Rs.3,80,000/, out of that, the complainant is entitled for sum of Rs.3,75,000/, as a compensation as per Sec.357(1) of Cr.P.C., remaining amount of Rs.5,000/, is to be appropriated to the state, in case of default, the accused shall under go simple imprisonment for a period of 6 months. Accordingly, I answered the above point in "Affirmative".
23. Point No.2: In view of above finding to Point No.1, I proceed to pass following;
ORDER Acting under section 255(2) of Criminal Procedure Code, the accused is convicted for an offence punishable U/s 138 of Negotiable Instrument Act.
21C.C.No.50169/2021 The accused is sentenced to pay a fine of Rs.3,80,000/, (Rupees three lakh eighty thousand only) in default, the accused shall undergo simple imprisonment for a period of six months. Out of the fine amount received, Rs.5,000/, is to be appropriated to the State and by way of compensation as per the provision u/Sec.357(1) of Cr.P.C., the complainant is entitled for Rs.3,75,000/.
The bail bond and surety bond of the accused shall stand cancelled.
Office is directed to furnish a free copy of the judgment to the accused.
(Dictated to the Stenographer transcribed and typed by her, corrected, signed and then pronounced by me in the open court, on this the 30th day of December, 2022) (M.Vijay), XXXIII ACMM, BENGALURU.
22C.C.No.50169/2021 ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : Sri. Ramu M.
2. Documents marked on behalf of complainant:
Ex.P.1 & 2 : 2 Original Cheques Ex.P.1(a) 2 (a) : Signatures of the accused Ex.P.3 to 7 : 5 Bank return memo's Ex.P.8 : Office copy of the legal notice Ex.P.9 : Postal receipt Ex.P.10 : Postal track consignment
3. Witnesses examined on behalf of Accused:
DW1 : Geetha M.
4. Documents marked on behalf of Accused:
Ex.D1 : Statement of account
Ex.D2 & 2(a) : Pendrive along with certificate U/s 65B
of evidence
Ex.D3 : Notarized copy of relevant page of Chit
(M.Vijay),
XXXIII ACMM, BENGALURU.