Bangalore District Court
Jiyaram Sirvi vs Rekha Devi on 2 February, 2023
KABC030560352021
Presented on : 13-08-2021
Registered on : 13-08-2021
Decided on : 02-02-2023
Duration : 1 years, 5 months, 20 days
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 2nd day of February - 2023
PRESENT: SRI. N.K.SALAMANTAPI, B.A., LL.B.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.20481/2021
Complainant : Jiyaram Sirvi,
S/o.Late Dhana Ramji Sirvi,
Aged about 46 years,
R/at No.3/2, 2nd Cross,
Srinivasanagara,
Bengaluru-72.
(Rep. by Sri.Suresh Naik, Adv.)
V/S
Accused : Rekha Devi,
W/o.Dharma Ram Sirvi,
Aged about 34 years,
M/s. Mahadev Textles,
No.81/2, 3rd Floor,
Chintal Chambers, D.K.Lane,
Chickpete Cross,
Bengaluru-53.
And also at:
Rekha Devi,
W/o.Dharmaram Sirvi,
Judgment 2 C.C.No.20481/2021
Aged about 34 years.
R/o Beera Ragunath Sagar,
Post : Bedkala,
Thahsil : Jaitaram,
District : Pali,
Rajasthan State-306 302.
(Rep.by Sri.Chand Pasha, 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 : 02.02.2023.
(N.K.SALAMANTAPI)
XXIII Addl.CMM., Bengaluru.
JUDGMENT
The complainant has presented the instant complaint against the accused under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act for dishonour of cheques amount of Rs.7,00,000/-.
2. The brief facts of the complaint are as under:
The complainant has submitted that the accused is known to him since several years. As both hailing from same village of Rajasthan State. On 15.03.2021, the accused had obtained Judgment 3 C.C.No.20481/2021 hand loan of Rs.7,00,000/- from him to start new textile shop in Bengaluru and on the very same day the accused had executed On demand promissory note and consideration receipt in his favour and towards discharge of her liability, the accused has issued two post dated cheques bearing No.043828 dated 25.06.2021 and another cheque bearing No.043829 dated 28.06.2021 drawn for Rs.3,50,000/- each in all Rs.7,00,000/-, both the cheques are drawn on South Indian Bank, Kempegowda Road Branch, Bengaluru in his favour and assured that the said cheques would be honoured on their presentation.
The complainant has further contended that believing the assurance of accused, he presented said cheques for encashment through his banker viz., Bank of Baroda, Amarajyothinagara Branch, Bengaluru, the same came to be dishonoured and returned with endorsements dated 28.06.2021, and 29.06.2021 respectively stating "Funds Insufficient". Immediately, he approached the accused and intimated about dishonour of cheques and demanded for repayment of the cheques amount, but the accused has dragon the same for one or other pretext and failed to repay the cheques amount. Hence, he got issued legal notice to the accused through his counsel on 03.07.2021 by way of R.P.A.D and the same was duly served Judgment 4 C.C.No.20481/2021 upon accused on 06.07.2021 and 10.07.2021. Despite, the accused neither paid the cheques amount nor replied the notice. Thus, the accused committed an offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
3. After receipt of the private complaint, this court 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 bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to the accused, wherein, she denied the same and claimed to have the defence and she chosen to file application required under Section 145(2) of Negotiable Instruments Act to cross-examine the PW.1 and to lead her defence evidence.
5. To prove the case of the complainant, he has chosen to examine himself as PW.1 and got marked documents at Exs.P1 to P10(b). Despite given sufficient opportunity to cross-examine the PW.1, the accused has not chosen to do so. The incriminating Judgment 5 C.C.No.20481/2021 evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein she denied the same. Despite given opportunity to lead her defence evidence, the accused did not enter into witness box.
6. I have heard the arguments.
7. On going through the rival contentions, based on the substantial evidence available on record, the following points would arise for determination:
1) Whether the complainant proves beyond all reasonable doubt that towards discharge of legally recoverable debt or liability, the accused has issued two post dated Exs.P1 & P2 - cheques in his favour and the same came to be dishonoured for the reasons 'Funds Insufficient' and even after service of notice, the accused has failed to repay the cheques amount and thereby accused has committed an offence punishable under Section 138 of N.I.Act?
2) 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 : As per final order, for the following:
Judgment 6 C.C.No.20481/2021
REASONS
9. POINT No.1: The complainant has filed this complaint for an offence punishable under Section 138 of Negotiable Instruments Act against the accused and prayed to punish the accused for an offence punishable under Section 138 of Negotiable Instruments Act.
10. To attract Section 138 of Negotiable Instruments Act, complainant should prove that; (1) the accused has issued cheques for discharge of legally recoverable debt. (2) The same were presented through his banker. (3) They were dishonoured on presentation. (4) The notice in terms of provisions was served on the accused and (5) Despite service of notice neither any payment was made nor other obligations, if any were complied within 15 days from the date of receipt of notice.
11. In order to prove his case, the complainant filed his affidavit and himself examined as PW.1, wherein, he has reiterated the averments made in the complaint. In support of his contention, he relied upon the documents at Exs.P1 to P10(b). Among them, cheques bearing No.043828 and 043829 issued by the accused for sum of Rs.3,50,000/- each dated 28.06.2021 and 29.06.2021 respectively, both the cheques are drawn on South Indian Bank Judgment 7 C.C.No.20481/2021 Limited, Kempegowda Road, Bengaluru are marked as Exs.P1 and P2. The signatures of accused are marked as Exs.P1(a) and P2(a). Exs.P3 and P4 are the Bank Endorsements issued by Bank of Baroda, the contents of Exs.P3 and P4 disclose that the cheques bearing No.043828 and 043829 drawn for Rs.3,50,000/-
each were dishonoured for the reasons "Funds Insufficient". Ex.P5 is the Legal Notice dated 03.07.2021, the recitals of Ex.P5 disclose that the complainant has issued this notice to the accused through his counsel. By issuing this notice, complainant called upon the accused to repay the cheques amount of Rs.7,00,000/- within 15 days from the date of receipt of notice. Exs.P6 and P7 are the Postal receipts. Exs.P8 and P9 are the track consignments. Ex.P10 is the On demand promissory note and consideration receipt and Ex.P12(a) and P12(b) are the signatures of accused.
Section 118 (a) of Negotiable Instruments Act provides that:
"Until the contrary is proved, the following presumptions shall be made: (a) of consideration; that every negotiable instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration."
Section 139 of Negotiable Instruments Act provides that:
Judgment 8 C.C.No.20481/2021 "It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability."
12. The above presumption is rebuttable in nature. In order to rebut the presumption available under Sections 118(a) and 139 of Negotiable Instruments Act, the accused, during the recording of plea as well as 313 of Cr.P.C statement, she denied the very allegations made against her and filed application under Section 145(2) of Negotiable Instruments Act seeking permission to put forth her defence and cross-examine the PW.1. This court has permitted to the accused to cross examine the PW.1 and to lead her defence evidence, but she did not do so. Hence, her side defence evidence was taken as nil.
13. On going through the order sheet, it discloses that after the case stage was set for 313 of Cr.P.C statement of accused, the advocate for accused filed application under Section 311 of Cr.P.C on 17.09.2022. This court in the best interest of justice, in order to provide an opportunity to the accused to prove her defence, allowed the same by imposing cost and the case stage was set for cross-examination of PW.1, but the accused did not utilize the same. The very act of the accused disclose that she is not having Judgment 9 C.C.No.20481/2021 any defence to prosecute the matter. This court has given ample opportunities to the accused to cross-examine the PW.1, but she did not make use of the same for the best reasons known to her. Hence, her side defence evidence was taken as nil.
14. It is pertinent to note that except bald denial while recording plea as well as 313 of Cr.P.C statement, the accused has not taken any specific defence, therefore, it is statutory presumption raised in favour of the complainant that the Exs.P1 and P2 cheques were issued by the accused for the payment of legally recoverable debt. On going through the materials available on record, which relied by the complainant, it prima-facie made out that after complying the mandatory requirement under Section 138 of Negotiable Instrument Act, the complainant has presented the case against the accused.
15. In the case on hand, the complainant by producing documentary evidence as well as oral evidence has proved his case beyond all reasonable doubt. The accused has not taken any probable defence to rebut the case of the complainant, thereby, the accused has failed to disprove the very case of the complainant. Mere taking bald defence is not enough to suspect Judgment 10 C.C.No.20481/2021 the genuineness of claim of the complainant. Therefore, there is no material on record to disbelieve the claim of the complainant.
16. On overall appraisal of the materials available on record, it is the considered opinion of this court that the accused has failed to discharge initial burden to rebut the statutory presumption as well as the facts and circumstances placed by the complainant in the present case. Thereby, the complainant has proved the guilt of the accused that the accused is liable to pay the amount covered under the Exs.P1 and P2-cheques. Therefore, keeping in the mind of the object of introduction of Negotiable Instruments Act, it appears this court that it is a fit case to convict the accused.
17. Therefore, from the perusal of oral and documentary evidence placed on record, it reveals that complainant has made out his case and accused has failed to rebut the presumptions arisen in favour of complainant. Thus complainant has proved that accused has committed an offence punishable under Section 138 of Negotiable Instruments Act beyond all reasonable doubt. Hence, in view of the above said reasons, I hold point No.1 in the Affirmative.
18. Point No.2: In view of my findings on point No.1, I proceed to pass the following:
Judgment 11 C.C.No.20481/2021
ORDER
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 total fine of Rs.7,20,000/-.
Out of the said fine amount, sum of Rs.7,15,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount of Rs.5,000/- shall be payable to the state as fine amount.
In default of payment of fine amount, the accused shall under go simple imprisonment for 10 (Ten) 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 in free of cost.
((Dictated to the Stenographer directly on computer typed by him, corrected and then pronounced by me in the open court on this the 2 nd day of February - 2023) (N.K.SALAMANTAPI) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Jiyaram Sirvi Judgment 12 C.C.No.20481/2021
List of Exhibits marked on behalf of Complainant:
Exs.P1 & P2 : Original Cheques (2 Nos.)
Exs.P1(a) & P2(a) : Signatures of accused
Exs.P3 & P4 : Bank endorsements
Ex.P5 : Office copy of legal notice
Exs.P6 & P7 : Postal receipts
Exs.P8 & P9 : Track consignments
Ex.P10 : On demand promissory note and
consideration receipt
Ex.P10(a) & P10(b) : Signatures of accused
List of Witnesses examined on behalf of the defence:
- None -
List of Exhibits marked on behalf of defence:
- Nil -
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 13 C.C.No.20481/2021 02.02.2023. Comp - Accd - For Judgment
Judgment pronounced in the open court vide separate order.
***** ORDER 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 total fine of Rs.7,20,000/-.
Out of the said fine amount, sum of Rs.7,15,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount of Rs.5,000/- shall be payable to the state as fine amount.
In default of payment of fine amount, the accused shall under go simple imprisonment for 10 (Ten) 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 in free of cost.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.