Bangalore District Court
Smt.S. Tulasi Bai vs Smt. Nayana Nateshan on 3 March, 2023
KABC0B0065132019
IN THE COURT OF THE XV ADDL.JUDGE, &
23rd ACMM, COURT OF SMALL CAUSES,
MAYO HALL UNIT, (SCCH19) BENGALURU
Dated this the 3rd day of March 2023
Present: Smt.RajeshwariJPuranik,
B.A., LL.B., (Spl.,)
XV Addl. Small Causes Judge &
XXIII A.C.M.M., Member, M.A.C.T.,
Bengaluru.
CC.No.50985/2017
COMPLAINANT: Smt.S. Tulasi Bai,
W/o Beer Bahadur Singh
aged about 48 years,
Resident of: 2nd Cross,
Bazaar Street, Behind Tin factory,
Udayanagar, Bengaluru560016.
(By Pleader Sri.Rajesh Rao .K.)
V/s
ACCUSED : Smt. Nayana Nateshan
D/o Sri.Nateshan,
Aged about 24 years,
Residing at No.1266,
Parvathi Nilayam, Vijayapuara,
Near Union Bank ATM
Doorvaninagar Post,
Bengaluru - 560 016.
(By Pleader Sri.Mohammed Wazeer)
*****
2 SCCH19
CC No.50985/2017
Date of offence : 24112016
Date of report of offence : 30012017
Date of arrest of the accused :
Date of recording of evidence : 30012017
Date of closing of evidence : 02112022
Offence complained of : U/sec. 138 of N.I Act
Judgment : Conviction
*****
JUDGMENT
This complaint is filed by the complainant U/sec.200 Cr.P.C against the accused for the offence punishable U/sec.138 of N.I.Act.
2. Brief facts of the Complaint are as under:
The Complainant and accused person were known to each other and were good friends. Accused person approached the Complainant for financial help for her domestic purpose, further accused person assured that she would return the said amount within 3 months. As per the request of the accused, Complainant paid sum of Rs.11,50,000/- (Eleven lakhs and fifty thousand only)
3 SCCH19 CC No.50985/2017 on 25-08-2016 to the accused, who in turn gave a post dated cheque for said amount bearing No.000013 dated 22-11-2016 for sum of Rs.11,50,000/- drawn on HDFC Bank, Bellandur gate, Sarjapur main road, Agara Post, Bengaluru branch.
3. The accused assured the Complainant that said cheque would be realized on the post dated date without fail and loan amount would be realized. So as per the assurance of the accused, the Complainant paid Rs.11,50,000/- and said amount was received by the accused, then accused handed over the said cheque to the Complainant.
4. The Complainant as per the assurance of accused presented the said cheque at her account in Vijaya bank, Halasur branch, Bengaluru on the date of said cheque for encashment, but said cheque was dishonoured with bank endorsement vide memo dated 24-11-2016 with a reason that, "Drawee signature differs." Accordingly said cheque was returned to Complainant as dishonoured. Later Complainant issued legal notice on 17-12-2016 to the accused calling upon 4 SCCH19 CC No.50985/2017 her to pay said amount of Rs.11,50,000/- within 15 days from the date of receipt of legal notice. Said notice was served on the accused on 23-12-2016 and accused came to the house of Complainant and requested for one month time. Accused failed to return the said amount even after receipt of said legal notice. Therefore the accused committed the offence punishable U/sec.138 of N.I. Act. So this complaint was filed against the accused.
5. After filing of the complaint, it was registered under P.C.R. and cognizance was taken for the offence punishable U/sec.138 of N.I. Act by the then Presiding Officer. Then sworn statement of the Complainant was recorded. After considering the documents and sworn statement of the Complainant case was registered and summons were issued to the accused.
6. In response to the summons accused appeared through her counsel got enlarged on bail, plea of the accused was recorded, accused pleaded not guilty and claimed to be tried. Hence case was posted for trial.
5 SCCH19 CC No.50985/2017
7. The sworn statement of the Complainant was treated as Chief examination in view of the guidelines issued by Hon'ble Apex court in the case of Indian Bank Association and others V/s Union of India and others.
8. In support of her case the Complainant got examined as PW.1 and got marked documents Ex.P1 to P5. Then statement U/sec.313 of Cr.P.C was recorded. Accused denied the incriminating circumstances and denied about borrowing loan of Rs.11,50,000/- from the Complainant. Further accused to substantiate her defence, she got examined herself as Dw.1 by filing affidavit and another witness by name Elsy Nateshan was examined as Dw.2. No documents were marked on behalf of the accused.
9. Heard the arguments of Learned Counsel for the Complainant and accused.
10. Perused the materials available on records, the Points that arise for my consideration are :
1. Whether complainant proves that, the accused issued post dated cheque bearing No.000013, dated 22-11-2016 for Rs.11,50,000/- drawn on HDFC Bank, Bellandur 6 SCCH19 CC No.50985/2017 gate, Sarjapur main road, Agara post, Bengaluru for discharge of legally recoverable debt and said cheque was dishonoured for the reasons "drawee signature differs." Inspite of issuance of legal notice dated 17-12-2016 accused failed to pay loan amount and thereby accused committed offence punishable U/sec. 138 of N.I.Act 1881?
2. What Order?
11. My findings on the above points are as under:
Point No.1: In the Affirmative,
Point No.2: As per the final Orders
for the following:
REASONS
12. Point No.1: Complainant paid loan of
Rs.11,50,000/- to the accused at her request, for which, the accused issued post dated cheque. But, said cheque was dishonoured. In order to substantiate her case, Complainant got examined herself as PW.1 and her sworn statement affidavit was treated as chief examination in view of the guidelines of the Hon'ble Apex court.
7 SCCH19 CC No.50985/2017
13. In her chief examination affidavit, she had reiterated entire contents of the complaint. In support of her case Complainant produced Ex.P1 to 5. Ex.P1 is the Cheque bearing No.000013, dated 22-11-2016, drawn on the HDFC Bank bank, Bellandur gate, Sarjapur main road, Agara post, Bengaluru branch, Ex.P2 is the bank endorsement dated 24-11-2016, Ex.P3 is the legal notice dated 17-12-2016, Ex.P4 is the postal receipt and Ex.P5 is the endorsement issued by the postal department for having served the legal notice to the accused on 22-12-2016. The present complaint is filed on 30-01-2017 i.e., within the period of limitation. Therefore the Complainant complied all the ingredients of Sec.138 of N.I. Act.
14. The accused in order to substantiate her defence, got examined herself as Dw.1. In her chief examination affidavit she deposed that, she came to know Complainant through her mother and her mother was customer of the Complainant for purchasing Sarees. Her mother Smt.Elsy Nateshan purchased Sarres worth of Rs.40,000/- from the Complainant in the year 2016 and amount was to be paid on installment.
8 SCCH19 CC No.50985/2017
15. But Elsy Nateshan had not paid the regular installments of Sarees purchased from the Complainant for worth of Rs.40000/-, so the Complainant asked the cheques belonging to accused and her Sister Navya for security purpose. So her mother Elsy Nateshan without the knowledge of accused and her sister Navya took each cheque belonging to accused and her sister bearing No.000013 and 649814 and handed over these two unsigned blank cheques to the Complainant in the month of January 2016.
16. She further deposed that, even after payment of Rs.40,000/- by her mother Elsy Nateshan, the Complainant returned on demand Pronote, which was signed by her mother. But, two unsigned cheques were not returned.
17. So, Complainant forged the signature of accused and presented the cheque and same was returned as "Drawee signature differs". She also deposed that she had not received the legal notice. The Complainant by taking undue advantage of her innocent mother Elsy Nateshan presented the cheques and instituted false Complaint.
9 SCCH19 CC No.50985/2017
18. Dw.2 mother of accused Elsy Nateshan deposed through her chief examination affidavit that, she purchased the sarees from Complainant for worth of Rs.40000/- in the year 2016, but she could not paid regular installment, so the Complainant asked unsigned cheques belonging to her daughters i.e., accused and Navya Nateshan. So, she took each cheque of her daughters bearing No.649814 and another cheque of accused bearing No.000013, she had given unsigned blank cheque to the Complainant in the month of January 2016.
19. She further stated that, after payment of full sarees amount of Rs.40,000/-, the Complainant handed over demand pronote signed by the Dw.2 but, the Complainant retained two unsigned cheques of her daughters.
20. The main defence of the accused is that, the disputed cheque was given by her mother to the Complainant for security purpose for having purchased Sarees worth of Rs.40,000/- and it's payment. But, accused had not borrowed Rs.11,50,000/- from the 10 SCCH19 CC No.50985/2017 Complainant. In the Cross examination Dw.1 spelt out that, "Question: Have you taken any action against your mother and Complainant for misuse of cheques?
Ans: I came to know about misuse of cheque after filing of this complaint. "
21. Dw.1 and 2 also deposed that, the Complainant returned Pronote only, but retained two cheques, if such pronote was executed by the mother in favour of Complainant for payment of Sarees amount then accused or Dw.2 could have produced returned Pronote to show the Saree transaction for worth of Rs.40,000/- and issuing cheque for security purpose.
22. Under Sec.139 of N.I. Act the presumption is in favour of holder of cheque, Sec.139 which reads as under:
"Presumption in favour of holder: It shall be presumed, unless the contrary is proved that holder of a cheque received the Cheque of the nature referred to in Sec.138 for the discharge, in whole or in part, of any debt or other liability."
11 SCCH19 CC No.50985/2017
23. So said presumption is presumption of law and not the presumption of fact. Further as per Section 118(a) of N.I. Act, the presumption is that, every negotiable instrument was made or drawn for consideration. So, such presumption has to be raised in all cases once the factum of issuance of cheque and its dishonour is established, the onus of proof to rebut the said presumption lies on the accused, though accused need not rebut the presumption beyond all reasonable doubt, but accused has to adduce sufficient material to show that, her case is more probable than the case of the Complainant.
24. The accused though examined her mother as Dw.2 to substantiate her defence that, disputed cheque was issued for security purpose, when her mother failed to pay installment of Saree purchase to the tune of Rs.40,000/-, the Dw.2 is mother of accused, she handed over the cheque of accused to the Complainant, the said cheque was returned with endorsement as "drawee signature differs." But when statutory notice was served upon the accused as per postal endorsement at Ex.P5, she could have replied said notice denying the issuance of cheque. Further 12 SCCH19 CC No.50985/2017 accused denied the receipt of legal notice, but postal endorsement Ex.P5 clearly shows the name of the accused with delivery date. When notice is issued to the correct address of the accused then, mere denial by the accused does not suffice.
25. Dw.1 accused also admitted in the Cross examination that, she was residing in the said address till 2018. So when Ex.P3 notice was issued she was residing in the said address. At this juncture this court relied upon the citation of Hon'ble Apex court in the case of C.C. Alavi Haji V/s Palapetty Muhammed & Anr on 18 May, 2007.
7. The issue with regard to interpretation of the expression giving of notice used in Clause (b) of the proviso is no more res integra. In K. Bhaskaran Vs. Sankaran Vaidhyan Balan & Anr. the said expression came up for interpretation. Considering the question with particular reference to scheme of Section 138 of the Act, it was held that failure on the part of the drawer to pay the amount should be within fifteen days of the receipt of the said notice. Giving notice in the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer at the correct address and for the drawer to comply with Clause (c) of the proviso. Emphasizing that the provisions contained in Section 138 of the Act required to be construed liberally, it was observed thus: If a strict interpretation is given that the drawer should have actually received the notice for the period of 15 days to start running no matter that the 13 SCCH19 CC No.50985/2017 payee sent the notice on the correct address, a trickster cheque drawer would get the premium to avoid receiving the notice by different strategies and he could escape from the legal consequences of Section 138 of the Act. It must be borne in mind that Court should not adopt an interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure. In Maxwell's Interpretation of Statues the learned author has emphasized that "provisions relating to giving of notice often receive liberal interpretation," (vide page 99 of the 12th Edn.) The context envisaged in Section 138 of the Act invites a liberal interpretation for the person who has the statutory obligation to give notice because he is presumed to be the loser in the transaction and it is for his interest the very provision is made by the legislature. The words in Claus
(b) of the proviso to Section 138 of the Act show that payee has the statutory obligation to make a demand ﾵ by giving notice. The thrust in the clause is on the need to make a demand ﾵ . It is only the mode for making such demand which the legislature has prescribed. A payee can send the notice for doing his part for giving the notice. Once it is dispatched his part is over and the next depends on what the sendee does. ﾵ
15. Insofar as the question of disclosure of necessary particulars with regard to the issue of notice in terms of proviso (b) of Section 138 of the Act, in order to enable the Court to draw presumption or inference either under Section 27 of the G.C. Act or Section 114 of the Evidence Act, is concerned, there is no material difference between the two provisions. In our opinion, therefore, when the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of Clause (b) of proviso to Section 138 of the Act stands complied with. It is needless to 14 SCCH19 CC No.50985/2017 emphasise that the complaint must contain basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque. It is well settled that at the time of taking cognizance of the complaint under Section 138 of the Act, the Court is required to be prima facie satisfied that a case under the said Section is made out and the afore noted mandatory statutory procedural requirements have been complied with. It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect. In our opinion, this interpretation of the provision would effectuate the object and purpose for which proviso to Section 138 was enacted, namely, to avoid unnecessary hardship to an honest drawer of a cheque and to provide him an opportunity to make amends.
16. As noticed above, the entire purpose of requiring a notice is to give an opportunity to the drawer to pay the cheque amount within 15 days of service of notice and thereby free himself from the penal consequences of Section 138. In Vinod Shivappa (supra), this Court observed: One can also conceive of cases where a well intentioned drawer may have inadvertently missed to make necessary arrangements for reasons beyond his control, even though he genuinely intended to honour the cheque drawn by him. The law treats such lapses induced by inadvertence or negligence to be pardonable, provided the drawer after notice makes amends and pays the amount within the prescribed period. It is for this reason that Clause (c) of proviso to Section 138 provides that the section shall not apply unless the drawer of the cheque fails to make the payment within 15 days of the receipt of the said notice. To repeat, the proviso is meant to protect honest drawers whose cheques may have been dishonoured for the fault of others, or who may have genuinely wanted to fulfil 15 SCCH19 CC No.50985/2017 their promise but on account of inadvertence or negligence failed to make necessary arrangements for the payment of the cheque. The proviso is not meant to protect unscrupulous drawers who never intended to honour the cheques issued by them, it being a part of their modus operandi to cheat unsuspecting persons.ﾵ
17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskarans case (supra), if the giving of notice ﾵ in the context of Clause (b) of the proviso was the same as the receipt of notice ﾵ a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act.
18. In the instant case, the averment made in the complaint in this regard is: Though the complainant issued lawyers notice intimating the dishonour of cheque and demanded payment on 4.8.2001, the same 16 SCCH19 CC No.50985/2017 was returned on 10.8.2001 saying that the accused was out of station. ﾵ True, there was no averment to the effect that the notice was sent at the correct address of the drawer of the cheque by registered post acknowledgement due. But the returned envelope was annexed to the complaint and it thus, formed a part of the complaint which showed that the notice was sent by registered post acknowledgement due to the correct address and was returned with an endorsement that the addressee was abroad. We are of the view that on facts in hand the requirements of Section 138 of the Act had been sufficiently complied with and the decision of the High Court does not call for interference.
Therefore, this court cannot make separate interpretation in respect of service of notice and it is held that, notice is issued by the Complainant is served upon the accused. When service of notice is proved then, it is for accused to make payment or reply by denying the same. But in the present case the accused neither paid the amount nor replied the notice.
26. Learned Counsel for the accused relied upon the citation reported in 2021 SCC MAD 2325 in the case of S.Ashok Kumar V/s S.S.Bhoopal, wherein it was held at Para No.5 that, The learned Counsel for the respondent would submit that the respondent never borrowed money from the complainant and admittedly the cheque was returned with an endorsement "drawers signature differs" and hence, the respondent sent a 17 SCCH19 CC No.50985/2017 reply for the statutory notice and the appellant https:// www.mhc.tn.gov.in/judis/ Crl.A.No.505 of 2019 has not even sent any rejoinder to that reply and no effective steps have been taken to send the disputed cheque for expert opinion for comparing the signature. It is further contended that the respondent is only an auto rickshaw driver, whereas, the appellant/complainant is doing in computer business and it was not even sated in the notice. It is further submitted that the appellant has to prove the relationship between the respondent and the appellant, and admittedly, the appellant is a stranger and an unknown person, he also properly explained the reply notice, for which there is no rejoinder. Though the learned Magistrate convicted the respondent, the first appellant court on proper appreciation of evidence, set aside the judgment of conviction and sentence and allowed the appeal and there is no merit in the appeal.
27. In the said case law, facts and circumstances are totally different from the case in hand, in the said case law the Complainant is a computer business man and accused is the auto rickshaw driver and stranger to the Complainant. Further in the said case, the accused had replied the statutory notice and there by denied the execution of cheque. But in the present case the Complainant established in unequivocal terms that statutory notice Ex.P3 was served upon the accused as per Ex.P5, but in the present case accused had not replied the statutory notice.
18 SCCH19 CC No.50985/2017
28. Further accused admitted that, she knew the Complainant through her mother, as her mother was purchasing Sarees from the Complainant. Further in the present case Dw.2 being mother of the accused, herself deposed that she handed over the cheque of accused to the complainant. Therefore, above said case law does not apply to the present case.
29. It is pertinent to note here that disputed cheque was handed over by the mother of the accused to the Complainant. Ex.P1 Cheque reveals that, the cheque belongs to Nayana Nateshan. The accused alleges that, blank unsigned cheque was issued by her mother along with Pronote. But, Complainant returned Pronote only. It is specific defence of the accused that, the Pronote was signed by her mother Dw.2, then how cum cheques of daughter were handed over to the Complainant without signature. In support of this defence, the accused had not produced Pronote also. So once issuance of cheque is proved though signature is denied, then the burden is upon the accused to establish that, the cheque was not issued for legally enforceable debt.
19 SCCH19 CC No.50985/2017
30. At this juncture, this Court relied upon citation in the case of ICDS Ltd. Vs. Beena Shabeer & Another (2002) 6 SCC 426, Cheque issued by the guarantor to discharge the debt of principal borrower was in question. High Court held that, being a cheque from the guarantor it could not be said to have been issued for the purpose of discharging any debt or liability. Supreme Court while reversing this finding held as under:
"10. The language, however, has been rather specific as regards the intent of the legislature. The commencement of the section stands with the words "Where any cheque". The above noted three words are of extreme significance, in particular, by reason of the use of the word "any" -the first three words suggest that in fact for whatever reason if a cheque is drawn on an account maintained by him with a banker in favour of another person for the discharge of any debt or other liability, the highlighted words if read with the first three words at the commencement of Section 138, leave no manner of doubt that for whatever reason it may be, the liability under this provision cannot be avoided in the event the same stands returned by the banker unpaid. The legislature has been careful enough to record not only discharge in whole or in part of any debt but the same includes other liability as well. This aspect of the matter has not been appreciated by the High Court, neither been dealt with or even referred to in the impugned judgment.
11. The issue as regards the coextensive liability of the guarantor and the principal debtor, in our view, is totally out of the purview of Section 138 of the Act, neither the same calls for any discussion therein. The 20 SCCH19 CC No.50985/2017 language of the statute depicts the intent of the law- makers to the effect that wherever there is a default on the part of one in favour of another and in the event a cheque is issued in discharge of any debt or other liability there cannot be any restriction or embargo in the matter of application of the provisions of Section 138 of the Act. "Any cheque" and "other liability" are the two key expressions which stand as clarifying the legislative intent so as to bring the factual context within the ambit of the provisions of the statute. Any contra- interpretation would defeat the intent of the legislature. The High Court, it seems, got carried away by the issue of guarantee and guarantor‟s liability and thus has overlooked the true intent and purport of Section 138 of the Act. The judgments recorded in the order of the High Court do not have any relevance in the contextual facts and the same thus do not lend any assistance to the contentions raised by the respondents."
13. It is, thus, clear that for whatever reason if a cheque is drawn on an account maintained by a drawer with its bank in favour of any person for the discharge of "any debt or other liability" the ingredients of offence under Section 138 of the Act gets attracted in case the cheque is returned dishonored for insufficiency of funds and the cheque amount remains unpaid within the statutory period, despite service of notice. Legislature has been careful enough to record not only discharge in whole or in part of any debt but the same also includes other liability as well. The words "any‟ and "other liability‟ used in the Section assumes importance in the sense that if a cheque is issued by a person to discharge any debt or other liability of another person it would attract the penal consequences under Section 138 of the Act. Accordingly, the view taken by the Trial Court is perverse being contrary to the settled legal position and has resulted in miscarriage of justice‟.
21 SCCH19 CC No.50985/2017 Therefore if cheque was issued for security purpose for purchasing Sarees by the mother of accused, then also Sec.138 of N.I.Act gets attracted.
31. Further the Complainant specifically contended that, accused being a friend approached the Complainant and borrowed the cheque amount. Per contra the suggestion was put to Pw.1 by the counsel for the accused that, she was doing money lending business and number of other cheque bounce cases were filed against many people. So complaint was lodged by mother of accused and local people against Complainant in Mahadevapura police station, but no records are produced.
32. It is not the case of the accused that the cheque was lost and it was being misused by the Complainant. But said cheque was handed over by the mother of accused Dw.2. Though Learned Counsel for the accused vehemently argued that, the Complainant was lending money to others and extracting huge interest. Though Pw.1 admitted the filing of another cheque bounce case against sister of accused for amount of Rs.13,50,000/-, 22 SCCH19 CC No.50985/2017 but it is also suggested to Pw.1 that mother of accused also issued her cheque for Rs.40,000/- and said cheque was cleared and demand note was returned back to mother. Under these circumstances, when the mother of accused was having transaction with the Complainant and also issued cheque and Pronote, then how cum the disputed cheque was handed over without signature.
33. Dw.2 in the Cross examination admitted that, she has her own bank account. Futher specifically admitted that, " it is true to suggest that accused is my daughter and staying with me". Further she deposed in the Cross examination that, "I cannot remember when complainant returned demand Pronote. Witness voluntarily says that about 7 years back, may be in the year 2017. I had not informed my daughters that Complainant returned demand Pronote only and not the cheques." Therefore, the testimony of Dw.2 itself shows the dishonest intention of accused and mother Dw.2. Being mother and daughter denied the cheque amount and contended that, blank cheque was handed over.
23 SCCH19 CC No.50985/2017
34. In the Cross examination of Pw.1 she deposed at para No.2 that, accused told me she was working in I.T. company at 2016 and she was getting salary of Rs.1,00,000/- p.m. This statement is not denied by the accused. So the accused is working in I.T. Company and was getting salary of Rs.1,00,000/- p.m. Under these circumstances, handing over of blank and unsigned cheque cannot be accepted. Accused is not illiterate woman, when she admitted in the Cross examination that, " I have completed my B.B.M. degree. Further she admitted that, it is true to suggest that, I am aware that while giving cheque to others, one has to write all the contents." So, it cannot be accepted that, unsigned blank cheque was handed over. The cheque was handed over by the mother, then it shows that dishonest of intention as held by the Apex court in C.C. Alavi Haji V/s Palapetty Muhammed & Anr on 18 May, 2007. The accused make such tactics to escape from liability by putting different signature even on acknowledgment.
35. Dw.1 also admitted that she had not taken any action against her mother and Complainant for misuse of her cheque. Under these circumstances, the cheque 24 SCCH19 CC No.50985/2017 was handed over to the Complainant by the mother of accused, then it cannot be said that, unsigned cheque was handed over when both mother and daughter staying together and having very good relationship. So, it appears that, said cheque was handed over with different sign by the accused to the custody of Complainant. At this juncture, this court relied upon the case law in the case of Dinesh Harakchand Sankla V/s Kurlon Ltd and others., reported in ILR 2006 KAR 234. wherein it is held as under:
As observed by the Apex court in the case of Nepc Micon Ltd., - cited supra, it is the duty of the court to interpret sec.138 of the N.I. Act consistent with the legislative intent and purpose, so as to suppress the mischief and advance the remedy. Sec.138 of N.I.Act has created contractual breach as an offence and legislative purpose is to promote efficacy of banking and for ensuring that, in commercial or contractual transactions, cheques are not dishonoured and credibility in transacting business through cheques is maintained. It is no doubt true that sec.138 of N.I. Act if read plainly, would disclose that, the drawer of cheque would be responsible to be proceeded with for the offence under sec.138 of N.I. Act if the cheque is returned with endorsement of insufficient funds or amount involved in the cheque exceeds the amount arranged to be paid from that account by an agreement made with that bank. To overcome the said provision in a circuitous way, the drawer of the cheque may find various ways of getting the cheques bounced or returned with the sole purpose
25 SCCH19 CC No.50985/2017 of defeating the encashment of the cheques. In such a situation the question is as to whether the courts can shut their eyes? The answer would be obviously in the Negative. If the drawer intentionally tampers the cheque or issues the cheuqe with a different in signature etc., the cheques will be definitely returned. Even after service of statutory notice, if the amounts involved in the cheque are not paid by the drawer of cheques, then his intentions are prima- facie clear, to the effect that he would be tampering with the cheques only with an oblique motive. If in such case the person in whose favour the cheques are issued is not allowed to prosecute the matter U/.sec.138 of N.I.Act, the very purpose of enacting sec.138 of N.I. A ct would be frustrated. The drawer of the cheque will have to take abundant precaution while issuing the cheques so that, the cheques should be honoured and contractual obligations are fulfilled. In case if the drawer issues cheques as in the case on hand, he will be doing so in circuitous manner in order to save his skin, only to take advantage of the absence of specific words U/sec.138 of N.I.Act.
Para.No.8 Even when the cheque is dishonoured by the reason of alteration in date and drawer's signature differs" the court has to presume, by virtue of section 139 of N.i.
Act that the cheques are received by the holder for the discharge in whole or in part, of any debt or liability. Of course this is the rebutable presumption. The accused alone can show to the court that the alteration in signature and date were not made because of insufficiency or reference may be made to the Judgment of Apex court in case of MTCL ltd., V/s Medhi Chemicals and Pharma ltd., 26 SCCH19 CC No.50985/2017 Therefore in the present case as per the say of the accused, the cheque was handed over by the mother of accused to the Complainant, the accused being daughter of Dw.2 also deposed that, she came to know about issuance of cheque in favour of Complainant only after receiving summons of this court. But such defence cannot be accepted. Further earlier transaction of mother of accused i.e., Dw.2 with the Complainant and execution of Pronote by Dw.2 in favour of Complainant in respect of Saree business, indicates that, accused and her mother had knowledge about issuance of cheque and the defence of the accused that, cheque was handed over without signature is not reliable.
36. Further Learned Counsel for the accused argued that, the entire amount was paid by way of cash and as per Sec.269 SS of Income Tax Act, more than Rs.20,000/- shall be paid by way of cheque or demand draft, but, on this ground it cannot be held that, the said debt is not legal debt.
37. In this regard it is relevant to rely the case law reported in ILR 2007 KAR 3614, 2008 (1) Kar LJ 338 in the case of Mr. Mohammed Iqbal vs Mr. Mohammed 27 SCCH19 CC No.50985/2017 Zahoor on 12 July, 2007, wherein it was held at para No.11 that,
11. The contravention of Section 269 SS though visited with a stiff penalty on the person taking the loan or deposit, nevertheless, the rigor of Section 271D is whittled down by Section 273B, on proof of bonafides. It cannot therefore be said that the transaction of the nature brought before this court could be declared illegal, void, and unenforceable.
38. Further Learned Counsel for the accused also argued that, Complainant had no financial capacity to pay Rs.11,50,000/-. In the Cross examination PW.1 deposed that, she has been doing Saree business in the home and getting rent and also her son is getting Rs.65,000/- p.m. and her husband is working. Though these details are not found in the complaint, but that is not fatal to the case of the complainant.
39. Further Pw.1 also deposed that, mother of the accused was also working as a Teacher at Lowry memorial school and her sister is working in I.T. Company, when accused is BBM degree holder, sister is working in I.T. company and mother is School teacher, such being the case, how cum the mother of the 28 SCCH19 CC No.50985/2017 accused handed over the unsigned cheque of accused to the Complainant for Rs.40,000/- as security. Therefore such defence cannot be accepted in the eye of law. This is the most absurd defence taken by the accused being degree holder and working in I.T. company who had better knowledge, to the procedure of issuance of cheque. When whole family is educated and working, how cum unsigned cheque was handed over to the Complainant. Further accused had not taken any legal steps against her mother as well as complainant as admitted by her in the Cross examination for misuse of alleged unsigned blank cheque. So, either accused or her mother need not hand over the unsigned cheque to the Complainant in any circumstances. So such improbable defence set up by the accused cannot be accepted.
40. Similar set up circumstances appeared in the criminal revision petition No.2011/2013 of Hon'ble High Court of Karnataka. Therefore accused failed to prove her defence in more probable manner than that of the Complainant, and failed to rebut the presumption available u/sec.118(A) and 139 of N.I. Act, in favour of 29 SCCH19 CC No.50985/2017 the Complainant. Therefore the accused is found guilty for the offence punishable U/sec.138 of N.I. Act, Accordingly I answer point No.1 in the affirmative.
41. Point No.2: The punishment for offence punishable U/sec.138 N.I. Act is imprisonment for a period which may extent to Two years or with fine. By considering the facts and circumstances, nature and year of transaction this court is of the considered opinion that it is just and proper to impose fine of Rs.11,55,000/- and awarding Rs.11,50,000/- as compensation to the Complainant as per Sec.357(1) of Cr.P.C. and remaining amount of Rs.5,000/- shall be remitted to the state. Accordingly, I proceed to pass the following :
ORDER Acting U/sec.252(2) of Cr.P.C I hereby convict the accused for the offence punishable U/sec.138 of N.I. Act.
The accused is sentenced to pay fine of Rs.11,55,000/- (rupees eleven lakhs and fifty five thousands only). In default of payment of fine, the accused shall undergo simple imprisonment for a period of 3 months.
30 SCCH19
CC No.50985/2017
In exercise of powers conferred
U/sec.357(1) (b) of Cr.P.C, out of fine amount a sum of Rs.11,50,000/- is order to be paid to the complainant as compensation and remaining amount of Rs.5,000/- shall be remitted to State.
Bail bond of the accused stands
canceled.
Supply free copy of this Judgment to the accused.
(Dictated to the stenographer directly on Computer, then rd corrected by me and pronounced in open court on this the 3 day of March 2023.) (RajeshwariJPuranik) XV Addl. Small Causes Judge & XXIII A.C.M.M., Bengaluru.
ANNEXURE List of witnesses examined for Complainant:
P.W.1 : Smt.Tulasi Bai.
List of documents exhibited for Complainant:
Ex.P1 : Cheque,
Ex.P2 : Bank endorsement
Ex.P3 : Copy of legal notice,
Ex.P4 : Postal receipt,
Ex.P5 : Endorsement issued by the postal
department
31 SCCH19
CC No.50985/2017
List of witnesses examined for accused:
DW.1: Smt. Nayana Nateshan DW.2: Smt.Elsy Nateshan
List of documents exhibited for accused:
Nil (RajeshwariJPuranik) XV Addl. Small Causes Judge & XXIII A.C.M.M., Bengaluru.