Bangalore District Court
Sri. Muniraju.S vs Smt.Gayathri on 1 June, 2022
IN THE COURT OF XX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU CITY
PRESENT: BHOLA PANDIT,
B.Com.,LL.M.,
XX ADDL. C.M.M.
Bengaluru.
Dated this the 1st day of June 2022
C.C.No.27813/2018
Complainant : Sri. Muniraju.S,
S/o Sri.Shamanna,
Age 45 years,
R/at.No.335, 2nd Stage,
Maduranagar, Varthur Post,
Bengaluru- 560 087.
{ By Sri.Manjunatha - Advocate }
Vs.
Accused : Smt.Gayathri,
W/o Sri.Govinda Reddy,
Major,
R/at.No.SB-1-34, Vijaya Enclave,
BTM 4th Stage, Vijaya Bank Colony,
Bengaluru- 560 076.
2 C.C.27813/2018
Also residing at,
Nallasandram Village,
Thally Kothanoor Post,
Denkanikottai Taluk, Krishnagiri
Ditrict(T.N.).
{ By Sri.Madhusudhana Reddy - Advocate }
Offence complained : U/S. 138 of N.I. Act.,
Plea of accused : Pleaded not guilty
Final Order : Accused is Convicted
Date of Order : 01-06-2022
JUDGMENT
The present complaint is filed under section 2(d) read with section 200 of code of criminal procedure against the accused seeking to punish her for the offence punishable under section 138 of the Negotiable Instruments Act ( in short referred as "N.I. Act").
3 C.C.27813/2018
02. The factual matrix of the complaint is summarized as under;
It is alleged in the complaint that, the accused being known person to the complainant, she has borrowed a sum of Rs.3,00,000/- from the complainant in the second week of January 2018 for her family necessities and has agreed to repay the same. But, the accused has failed to repay the borrowed amount and in the 2 nd week of July 2018 towards discharge of her legal liability, the accused has issued a cheque bearing No.584790 dated 16.07.2018 for a sum of Rs.3,00,000/- drawn on Indian Bank, Thally, Krishnagiri Branch, Tamilnadu in favour of the complainant. On 16.07.2018, the complainant has presented the said cheque for encashment through his banker M/s HDFC Bank Ltd, Richmond Road Branch, Bengaluru, but it returned unpaid with banker's endorsement dated 17.07.2018 as "Drawer Signature Differs". Therefore, on 09.08.2018, the demand notice has been issued to the accused by RPAD. The demand notice 4 C.C.27813/2018 issued by RPAD has been duly served on the earlier address of the accused on 10.08.2018 are the Postal Track Consignment report. But the notice issued to the address of Tamilnadu returned on 21.08.2018 with a shara " not found several beats hence return to sender". Inspite of service of legal notice, the accused neither has paid the cheque amount nor has given any reply. On these grounds, it is sought to convict the accused for the offence punishable under section 138 of NI Act and grant compensation as per section 357 of Code of Criminal Procedure.
03. On presentation of complaint, this court has verified the averments of complaint along with records and thereby had taken cognizance for the offence punishable under section 138 of NI Act. Thereby, as per the verdict of the Hon'ble Apex court reported in AIR 2014 SC 2528 in the case of Indian Bank Association and others V/s Union of India and others, the sworn statement of the 5 C.C.27813/2018 complainant has been recorded as PW.1 and got exhibited eleven documents at Ex.P.01 to 11. Ex.P.11 is got marked on confrontation with DW.1. Having been made out the prima-facie case, the complaint has been registered in Register No. III and issued process against the accused.
04. In response to the summons, the accused put her appearance before the court through her counsel and filed bail application under section 436 of Code of Criminal Procedure, the accused has been enlarged on bail. The substance of accusation has been recorded and read over to the accused, she pleaded not guilty and intends to put forth her defense. On filing application by the complainant under section 145(1) of NI Act, sworn statement of the complainant has been treated as examination in chief. Similarly, on filing application under section 145(2) of NI Act, the accused has been permitted to cross examine PW.1. On completion of the trial of the complainant's side, the statement of accused under section 313 of Code of Criminal 6 C.C.27813/2018 Procedure has been recorded and read over to the accused, the incriminating material found in the trial of the case of the complainant. The accused has denied the same in toto and gave explanation stating that, the complainant is stranger to the accused. The accused also wants to lead her defense evidence. Similarly, the accused has filed her evidence in the form of affidavit. As per the judgment of the Hon'ble High Court of Karnataka in Cr.Pet.No.9331/2017 dated 02.07.2019 in the case of Vittal Sambrekar Vs. Manjunath, the accused is permitted to lead her defense evidence by way of affidavit and got exhibited thirty documents at Ex.D.01 to 30.
05. Heard the oral argument of Learned counsels for both the parties. Perused the materials available on record.
In support of his argument, the complainant has relied the following verdicts;
1. 2007(6) Supreme Court Cases 555 C.C.Alavihaji Vs. Palapetty Muhammed and Another 7 C.C.27813/2018
2. AIR 2009 SC 386 M/S.Indo Automobiles Vs. M/s. Jai Durga Enterprises and others
3. 2006 CRI.L.J.1
4. 2001 S.C.C.(Cri) 960 Hiten P.Dalal Vs. Bratindranath Banerjee
5. 2010 AIR SCW 2946 Rangappa Vs. Mohan
6. 2015 AIR SCW 3040 T.Vasanthakumar Vs. Vijayakumari
7. 2001(8) SCC 458 K.N.Beena Vs. Muniyappan
8. 2012 (13) SCC 375 Laxmi Dyechem Vs. State of Gujarat and others
9. 2006 CRL.L.J. 3760 Smt.Umaswamy Vs. K.N.Ramanath
10. 2001(4) Kar. LJ 122 S.R.Muralidar Vs. Ashok G.Y.
11. 2002(5) Kar.L.J.516 Smt.Bhavani Vs. D.C.Doddarangaiah and another 8 C.C.27813/2018 In support of his argument, the defense counsel relied the following verdicts;
1. (2020)15 SCC 348 Anns Rajashekar Vs. Augustus Jeba Ananth
2. (2019) 5 SCC 418 Basalingappa Vs. Mudibasappa
3. (2013) 1 SCC 327 Reverend Mother Marykutty Vs. Reni C.Kottaram and Another
4. (2006) 6 SCC 39 M.S.Narayana Menon Alias Mani Vs. State of Kerala and Another.
With due respect of the precedents relied by the respective parties of the lis, I have carefully and meticulously gone through the precedents of the relied judgments and also the facts and circumstances of each cases.
9 C.C.27813/2018
06. The following points that arise for my consideration are as under;
POINTS
1. Does the complainant proves beyond reasonable doubts that, the accused has issued a cheque bearing No.584790 dated 16.07.2018 for a sum of Rs.3,00,000/- towards the discharge of his lawful liability of the complainant and when the said cheque was presented for encashment, it was returned unpaid due to "Drawer Signature Differs"
in the account of the drawer as per banker's memo and inspite of issuance of demand notice , the accused has failed to pay the cheque amount, thereby has committed the offence punishable under section 138 of NI Act?
2. What Order or sentence ?
07. My findings to the above points is as follows;
1. Point No.1: In the affirmative
2. Point No.2: As per final order for the following;10 C.C.27813/2018
REASONS
08. POINT No.1: It is the specific case of the complainant that, the accused had borrowed hand loan of Rs.3,00,000/- from the complainant to meet her domestic needs and towards discharge of the said hand loan amount, the accused has issued the disputed cheque and when the said cheque was presented for encashment, it returned unpaid due to "Drawers Signature Differs" in the account of the drawer and inspite of receipt of demand notice, the accused has failed to make the payment of the cheque amount.
09. To substantiate and establish this fact before the court beyond reasonable doubts as per the verdict of the Hon'ble Apex court in the case of Indian Bank Association and others V/s Union of India and others , the sworn statement of the complainant has been treated as affidavit evidence. In his affidavit evidence, PW.1 has replicated the averments of the complainant. To corroborate the evidence 11 C.C.27813/2018 of PW.1, the complainant has placed on record in all eleven documents as per Ex.P.1 to 11. Ex.P.1 is the disputed cheque dated 16.07.2013, Ex.P.1 (a) is the signature of accused, Ex.P.2 is the banker's memo dated 17.07.2018, which shows the reasons for the return of the cheque at Ex.P.1 for unpaid is as " Drawer Signature Differs" , Ex.P.3 is the legal notice dated 09.08.2018 demanding for payment of cheque amount by replicating the averments of complaint. The demand notice issued by RPAD has been duly served on the earlier address of the accused on 10.08.2018 are the Postal Track Consignment report. But the notice issued to the address of Tamilnadu returned on 21.08.2018 with a shara " not found several beats hence return to sender". Ex.P.4 & 5 are the the postal receipts about sending legal notice at Ex.P.3, Ex.P.6 is the postal tracking report, Ex.P.7 is the returned postal cover, Ex.P.8 is the bank account statement of the complainant, Ex.P.9 is the salary certificate, Ex.P.10 is the Employ Identity Card and Ex.P.11 is the statement of account marked on 12 C.C.27813/2018 confrontation with DW.1. PW.1 has been substantially cross examined by the counsel of accused.
10. To disprove the case of the complainant and also to rebut the mandatory presumptions which could be drawn under section 139 of NI Act, the accused adduced her oral evidence before the court by way of filing her affidavit in the form of examination of chief as DW.1. She testified in her affidavit that, she do not know the complainant, as she has never met the complainant in her life and very first time she saw him in the court out of curiosity. She further testified that, she is a land lord business lay. She has own lands in Anniyalam Village, Denkanikotai Village, Krishnagiri. She has leased out her land for mining business. She do crores of rupees transaction and she is an Income Tax Assessee. She states that, she never resided at Nallasandram Village, Thally, Kothanoor Post, Denkanikottai Taluk, Krishnagiri District, Tamil Nadu and also she has not given this address to anybody. She further 13 C.C.27813/2018 stated that, during the alleged period as stated by the complainant, she was residing at Flat No.SA 2-12, Kumaradhara South Block at Vijaya Enclave, Sundar Ram Shetty Nagar, Bilekahalli, Bengaluru- 560 076. She also paid the maintenance charges to the residents' association and she has produced her Aadhar card and maintenance payment receipts. She asserted that, a false complaint is filed against her by providing false and baseless allegations and also by showing false addresses. She never borrowed any money from the complainant as such, she was not in need of money for her family necessities or for any other purpose during December 2017 and January 2018. Her bank account statement is a material document to show that, she never borrowed any amount from the complainant. The complainant never contacts her at any point of time and just to grab the money, the complainant produced false story.
She deposed that, one Mr Dayanand Reddy is one of her distant relative. He along with one of his friends 14 C.C.27813/2018 Mr.S.Srinivas, approached her and sought for investment to purchase a site in the year 2012. At that time, her late husband handed over the certain cheques to the said Srinivas towards verification purpose. Those cheques were blank cheques without signatures or any amount or names. Subsequently, the transactions between her husband and the said S.Srinivas ended in the year 2013 and S.Srinivas failed to return the cheques after frequent follow-ups. On further enquiry, she came to know that, the complainant is the driver of the above said Dayanand Reddy. The disputed cheque is one of the cheques given to S.Srinivas in the year 2012 and they were not maintaining this bank account for a longer time. She has not issued the said cheque to the complainant on 16.07.2018 for a sum of Rs.3,00,000/-. The writings on the said cheque are not the writings of her hand writings. She has not signed the said cheque. She used to her signature as "gayathri govinda reddy" . Since, she had no transaction with the complainant, she do not owe any money to the complainant as alleged. She also do not know 15 C.C.27813/2018 who is the Paramesh and she never met the wife of complainant.
She further deposed that, Mr.S.Srinivas has also filed similar case against her in CC.No.15582/2019 alleging that, a cheque bearing No.584791 was dishonored. The certified copy of the order sheets, complaint and other exhibits marked. The said Srinivas has also filed another complaint against her late husband bearing No.55627/2018 alleging that, two cheques bearing No.081022 and 081023 were dishonored and her husband was acquitted in the said case. Similarly, a false criminal case is filed against her and her husband. She stated that, when they came to know that the complainant is working in a private company and sent a notice to the alleged employer of the complainant. The said notice was duly served , but no representation of the said company. It is her further evidence that, there is a law under Income Tax Act that, it is not permissible to have cash transaction for an amount of Rs.20,000/- and more. The complainant evidence shall 16 C.C.27813/2018 not be taken into consideration, which has contradictory. The complaint is not maintainable either in law or on facts and there is no legally enforceable debt. She do not owe any money either to the complainant or to S.Srinivas or to Dayanand Reddy by misusing the blank documents given by her for purchase of a site and false cases were filed in Bengaluru, Anekal and K.R.Pet. These cases have been filed only to defame her and make unlawful gain. Due to the stress caused by filing this false complaint, her husband Govinda Reddy passed away at the young age of 50 years. Therefore, she has sought to dismiss the complaint and acquit her from this case. DW.1 has been substantially and elaborately cross examined by the Learned Senior counsel of the complainant. In support of the oral evidence of DW.1, the accused has placed on record in all thirty documents marked at Ex.D.1 to 30.
Ex.D.1 is the notarized copy of Adhar card standing in the name of accused, wherein her address is reflecting, Ex.D.2 to 7 are appears to be receipts for making payment 17 C.C.27813/2018 of maintenance amount of the flat to Vijaya Enclave apartments owner issuing wherein the name of accused and flat number has been mentioned. Ex.D.8 is one of the postal cover wherein the name and address of the accused is found. Ex.D .9 and 10 are the IT returns form No.6 for the year 2017-2018 and 2018-2019 and as per these two documents, the accused Gayathri appears to be assessee of Income Tax Department. Ex.D.11 is the bank account statement of Axis Bank for the period from 01.04.2017 to 31.03.2018, but the name of account holder is not reflecting in this statement. Ex.D.12 is the certified copy of order sheet of 22nd ACMM Court, Bengaluru in CC.No.15582/2019. Ex.D.13 is the certified copy of complaint under section 200 of Cr.P.C. and as per these two documents one S.Srinivas has filed another complaint under section 200 of Cr.P.C., against the accused Gayathri Govinda Reddy for the dishonour of cheque bearing No.584791 for a sum of Rs.50,00,000/-. Ex.D.14 is the sworn statement of the complainant in that case, Ex.D.15 18 C.C.27813/2018 and 16 are the alleged cheque and banker's memo of the said case. Ex.D.17 is the demand notice, Ex.D.18 is the postal track consignment report in respect of the said case, Ex.D.19 and 20 are the certified copy of the RPAD endorsement and the bank deposit slip. Ex.D.21 is the certified copy of police complaint lodged jointly by present accused Gayathri along with her husband Govinda Reddy, Ex.D.22 is the reply notice issued by the accused Gayathri Govinda Reddy to the demand notice issued by the present complainant, Ex.D.23 is the speed post acknowledgment copy, Ex.D.24 is the certified copy of judgment passed in C.C.55627/2018 on the file of 34th ACMM, Mayo Hall, Bengaluru. Wherein, the said complaint was filed by Mr.S.Srinivas against one Mr.Govinda Reddy for the dishonour of 2 cheques of Rs. 45,00,000/- and Rs.35,00,000/- respectively and the said case was came to be dismissed and the accused was acquitted, Ex.D.25 to 29 are the photographs pertaining to the flats of Vijaya 19 C.C.27813/2018 Enclave, Kumaradhara Block. Ex.D.30 is the CD copy of pertaining to the photographs at Ex.D.25 to 29.
11. The Learned Counsel for the complainant in respect of service of demand notice vehemently contended that, the demand notice issued on the earlier address of the accused was duly served. He further argued that, DW.1 has admitted in her cross examination about mentioning her address on Ex.P.11. He further would contend that, even in the documents at Ex.D.13, 17, 21 and 28 produced by the accused herself. The first address of the accused as shown in the complaint is reflecting in these documents, therefore he submitted that, there is a strict compliance of the provisions of section 138 of NI Act. The Learned Counsel for the complainant further vehemently argued that, though the accused has denied the issuance of cheque at Ex.P.1 during the cross examination of PW.1, but no reply was given to the demand notice issued at Ex.P.3. He further would contend that, DW.1 has admitted in her cross 20 C.C.27813/2018 examination about her having two bank accounts, one in the Indian Bank and another one is in the HDFC Bank. The Learned Counsel submitted that, when her husband Govinde Gowda handed over the cheques to one Srinivas in the year 2013 in respect of purchase of a site and the said Srinivas has failed to return the cheques in respect of repeated demand made by her husband. Later, the said Srinivas misused the cheques given to him and one of the cheque handed over to the present complainant and thereby has made him to file the present complaint and the cheque at Ex.P.1 is one of the cheque given to the said Srinivas in the year 2012. By this defense of the accused, he would contended that, the accused is admitting the issuance of cheque at Ex.P.1 from her account. Therefore, the presumption under section 118(a) and 139 of NI Act shall be drawn in favour of the complainant. He further would contend that, the judgment passed by 34 th ACMM, Bengaluru in CC.No.55627/2018, do not binds on this court. On these grounds he has sought to convict the 21 C.C.27813/2018 accused. In support of his argument, the Learned Counsel for the complainant relied judgments as stated above.
12. Per contra, the Learned Senior Counsel appearing for the accused vehemently argued that, the complainant has failed to prove the service of demand notice on the accused and the current address of the accused is reflecting in the documents produced at Ex.D.1 to 8 and that to the said address of the accused no demand notice has been issued, thereby the present complaint do not attract the penal provision under section 138 of NI Act. The Learned Senior Counsel would contend that, the complainant has failed to prove the advancement of alleged hand loan amount to the accused and also no documents have been produced before the court. The Learned Senior Counsel strenuously contended that, the documents produced by the complainant at Ex.P.8 and 9 shall not be reliable in the evidence as such, the complainant has failed to prove as a employee of the said company and the said documents are 22 C.C.27813/2018 not valid documents and just for the purpose of this case those two documents have been relied. He further argued that, the complainant had no sufficient financial capacity to advance alleged hand loan amount to the accused, therefore he submitted that, the accused has successfully rebutted the presumption. Accordingly, has sought to dismiss the complaint and thereby acquit the accused. The Learned Defence Counsel has relied the judgments passed by this court in CC.No.13928/2017 and C.C.7897/2018. Of course, in these relied judgments, the accused persons have been acquitted by this court. It is well settled law that, the law of precedent shall not be commonly made applicable to all the cases and the findings of all the cases varies from the facts of each cases. Therefore, the judgment passed by this court as relied above cannot be made applicable to the case on hand. The Learned Senior Counsel has also relied the judgments in support of his argument as stated above. 23 C.C.27813/2018
13. As per sections 118 & 139 of NI Act are two important provisions and they provides for raising mandatory presumptions in favour of the complainant until the contrary is proved by the accused. Even in the catena of decisions i.e., in the case of Rangappa Vs. Mohan reported in 2010(11) SCC 441, in the case of Bir Singh Vs. Mukesh Kumar reported in 2019(4) SCC 197, in the case of APS Forex Services (P) Ltd., Vs.Shakthi International Fashion Linkers reported in 2020(12) SCC 724, in the case of Rajeshbai Muljibhai Patel Vs. State of Gujarat, reported in 2020(3) SCC 794, in the case of Triyambak S. Hegde Vs. Sripad reported in Live Law 2021 SC 492 and it is laid down that, " Once the issuance of cheque and the signature thereon is admitted by the accused, the court is required to raise presumption in favour of the the complainant stating that, the accused has issued the cheque for some consideration towards discharge of his legal debt or liability of the complainant and that the complainant is the due holder of the said cheque. The 24 C.C.27813/2018 burden or reverse onus shifts on the accused to rebut the statutory presumptions under sections 118(a) & 139 of NI Act." Now, it is well established law that, the presumption mandated by section 139 of NI Act, thus indeed includes the existence of legally enforceable debt or liability and it is open for the accused to raise a probable defense wherein the existence of legally enforceable debt or liability can be contested and he shall prove before the court on preponderance of probabilities, only thereupon a statutory presumption raised in favour of the complainant stands rebutted.
14. On perusal of the banker's endorsement at Ex.P.2 it depicts that, the cheque at Ex.P.1 was dishonoured for the reason that "Drawers Signature Differs". This reason issued by the bank gives the remaining that, the signature made on the cheque at Ex.P.1 is not matching with the signature made on the specimen signature card submitted to the bank while filing the account opening form. The core 25 C.C.27813/2018 question would be whether the reason assigned as "
"Signature Differs" would attract the penal provision of section 138 of NI Act or not? In this regard, the Learned Counsel for the complainant has relied the judgment of Hon'ble Apex Court reported in, 2012 (13) SCC 375, in the case of Laxmi Dyechem Vs. State of Gujarat and others wherein it is held that;
" The dishonour of cheque on the ground that, the signatures of drawer did not match the specimen signature available with the bank would attracts the penal provision of section 138 of NI Act".
Even in another Judgment of the Hon'ble High Court of Karnataka reported in, 2006 (2) KLT 733 in the case of Dinesh Harakchand Sankla V/s. Kurlon Ltd. And Ors, it is held that;
"Even the alteration found in the drawer's signature or the signature of the drawer differs with the specimen signature would attract the penal provision under section 138 of NI Act."26 C.C.27813/2018
By these two precedents of the Hon'ble High Court of Karnataka and Hon'ble Apex Court, now it is well settled law that, even if the cheque dishonoured for the reason of "Signature Differs" or "Signature mismatch" or " Part Signature" would attract the penal provision of section 138 of NI Act.
15. Before to appreciate the oral and documentary evidence relied by the respective parties and also to appreciate the oral arguments advanced by both the Learned counsels' I would like to give findings about maintainability of the present complaint as such, the Learned Senior Counsel for the accused seriously contended about the service of demand notice to the accused . In the complaint, there is a specific pleadings about the service of demand notice to the accused as per the postal track consignment report produced at Ex.P.6. The Learned defense counsel branded the document at Ex.P.6 is a created and concocted document. In Ex.P.6, the 27 C.C.27813/2018 consignment number is shown as AKD 1899427IN. The complainant has produced the postal receipt, which is marked at Ex.P.5 and in this postal receipt the same consignment number is appearing as found in Ex.P.6. This postal receipt at Ex.P.6 is not at all either denied or disputed by the accused. Therefore, the contention of Learned counsel in respect of Ex.P.6 do not holds any water and his contention branding Ex.P.6 as a concocted document needs to be rejected. Ex.P.6 is a public document issued by the postal authority and it would attract the provisions of section 35 of Evidence Act. On the other hand, the accused not made any efforts to examine the concerned official of the post office to disprove Ex.P.6.
16. On further scrutinizing of the documents produced by the accused at Ex.D.1 to 9 wherein also the place of residence of accused is appears at 'Vijaya Enclave'. Ex.D.1 is the notarized copy of Aadhar card standing in the name of accused and in which also the same address of the 28 C.C.27813/2018 accused is appearing as shown in the complaint . Further, in the documents at Ex.D.17 to 21 particularly in Ex.D.21, the same address of the accused is appearing as shown in the complaint as well as in the legal notice at Ex.P.3. That apart, the accused has also produced before the court the certified copy of the judgment in CC.No.55627/2018 passed by XXXIV ACMM, Bengaluru, wherein the address of the accused's husband is also reflecting as the same address as shown in the complaint. More so, one S.Srinivas also filed another complaint against the present accused Gayathri in CC.No.15582/2019, in which also the same address of the accused is appearing as mentioned in the present complaint and in the said CC.No.15582/2019, the accused put her appearance through the counsel and got enlarged on bail. Apart from these documents even in the photographs at Ex.D. 25 to 29 are the name of the apartment is appearing as "Vijaya Enclave" only. Therefore, by considering these documentary evidence produced by the accused herself and also the documents of the 29 C.C.27813/2018 complainant at Ex.P.5 & 6, I am of the considered opinion that, as per Ex.P.6, the demand notice issued under Ex.P.3 has been delivered to the accused. On the other hand, I do not find any force in the contention of the accused with regard to non service of demand notice. The present complaint has been filed on 20.09.2018 and on perusal of the disputed cheque, banker's memo, demand notice, postal acknowledgement and reply notice, it appears that, the present complaint filed in compliance of section 138(a) to (c) of NI Act.
17. During the cross examination of PW.1, in para No.2 of page No.5 some evidence has been elicited from his mouth to the fact that, the cheque at Ex.P.1 was printed in the year 2010 and from 01.04.2012, it has the validity of 3 months. By considering this admission given by PW.1 during his suggestion, the Learned counsel for the defense side was contended that, the cheque was not valid at the time of its alleged presentation to the bank as per Ex.P.2. 30 C.C.27813/2018 Therefore, the cheque at Ex.P.1 do not attracts the offence under section 138 of NI Act. To appreciate this contention of the Learned Senior Counsel, it is necessary to carefully scrutinize the writings found on Ex.P.1. Undoubtedly, as per the small words printed on the extreme left side of the cheque, it reveals that, it is the CTS cheque printed in the year 2010. Further, below the column of account number there is a writing in the printed form wherein it is mentioned as "VALID FOR THREE MONTHS ONLY FROM THE DATE OF ISSUE W.E.F.1.4.2012". By this printed form it reveals that, though this cheque was printed as CTS in the year 2010, but it shall be issued with effect from 1.4.2012, which does not mean that the validity of this cheque shall be counted from 1.4.2021. As per the provisions of NI Act, earlier the validity of the cheque was 6 months from the date of its issuance, but from 2012 onwards as per the guidelines of RBI, now the validity of the cheque shall be 3 months from the date of issuance and not from the date of 1.4.2012 as printed on this Ex.P.1. 31 C.C.27813/2018 Therefore, this contention of the Learned defense counsel holds no water.
18. During further cross examination of PW.1 in para No.2 of page No15 it is suggested as under;
"ನಪ.1 ರ ಚಕಕಕ ಆರರರಪಯವರಗ ಸರರದಕ ದ ಅಲಲ ಎಎದರ ಸರ ಅಲಲ . ನಪ.1(ಎ) ಸಹ ಆರರರಪಯ ಸಹ ಅಲಲ ಎಎದರ ಸರ ಅಲಲ .
ನಪ.1 ರಲ ಆರರರಪತಳ ಹಸರಕ ಪಪ ಎ ಟಎಲಲ ಎಎದರ ಸರ."
By this suggestion made on behalf of the accused, the defense of the accused appears to be denial of issuance of cheque at Ex.P.1and also her signature on Ex.P.1(a). On the other hand, in para No.7 of her chief evidence as DW.1, the accused deposed that, in the year 2012 one Mr.S.Srinivas approached her husband for purchase of site and at that time, her husband handed over some cheques to the aid S.Srinivas towards verification purpose and those cheques were blank cheques without signatures or any amount or names and subsequently when the transaction was ended in the year 2013, the said S.Srinivas has failed to return the cheques. It is further stated in her 32 C.C.27813/2018 chief examination in para No.8 that, Ex.P.1 is the one the cheques given to S.Srinivas in the year 2012 and this cheque was not issued to the complainant on 16.07.2018. On further security of her own document of accused produced at Ex.D.21, which is the certified copy of complaint jointly alleged by the present accused by name Gayathri and her husband before the Police Commissioner, Bengaluru City, Bengaluru on 02.08.2019. Whrein, in para No.1 of the said complaint it is alleged that, her husband Govinda Reddy received a sum of Rs.30,00,000/- during the year 2015 to 2017 from Mr.S.Srinivas and the said S.Srinivas has taken two signed blank cheque books belonging to both of them and also taken 3 signed blank stamp paper from them. That apart, during her further chief examination in para No.11 she deposed that, the said Mr. S.Srinivas has filed a similar case against her in CC. No.15582/2019 in respect of her another cheque bearing No.584791. By this evidence of DW.1 coupled with her own document at Ex.D.21, I am of the considered opinion that, 33 C.C.27813/2018 the defense of the accused is not consistent. At one stretch during the cross examination of PW.1 as discussed above, she denied that the cheque at Ex.P.1 do not belongs to her account and that the signature at Ex.P.1(a) is not the signature of her. On another stretch, as per her own deposition in examination in chief and the document at Ex.D.21 as discussed above, it is her defense that, her husband has handed over two signed blank cheques to one S.Srinivas and the said Srinivas did not return those cheques. Now, the said Srinivas has file done more case against her by using cheque bearing No.584791 and has made to file present case through the complainant by using the disputed cheque bearing No.584790. By this defense of the accused, it can be clearly seen that, the accused has been admitted the issuance of the cheque at Ex.P.1 from her own account maintained in the Indian Bank at Tamil Nadu and that the signature on Ex.P.1(a) belongs to her own signature. The rest of the allegations of the accused with regard to issuance of those two cheques to one 34 C.C.27813/2018 S.Srinivas for any other transactions and it shall be established and proved by the accused herself before the court in order to rebut the statutory presumptions under sections 118(a) & 139 of NI Act. Therefore, by this defense, since the accused has been admitting the issuance of cheque at Ex.P.1 and her signature thereon. Hence, I am of the considered opinion that, the presumption under section 118(a) and 139 of NI Act shall lie in favour of the complainant stating that, the accused has issued the cheque under Ex.P.1 for some consideration towards the discharge of legal debt of the complainant and that the complainant is due holder of the said cheque. Now, the burden lies on the accused to rebut the statutory presumptions under sections 118(a) & 139 of NI Act.
19. Further, during the cross examination of PW.1, the very advancement of disputed loan amount of Rs.3,00,000/- has been denied and also questioned the financial capacity of the complainant. In this regard, in the judgment 35 C.C.27813/2018 reported in AIR 2019 SC 1983 , in the case of Basalingappa Vs. Mudibasappa, a precedent laid down by the Hon'ble Apex Court stating that;
"Once the accused has questioned the financial capacity of the complainant to advance disputed hand loan amount, then after discharge of burden casted on the accused or on successful rebutting of presumption raised under section 139 of NI Act by the accused. The onus shifts on the complainant to prove his financial capacity."
By referring to the precedent in the case of Basalingappa Vs. Mudibasappa reported in AIR 2019 SC 1983 , in a latest judgment in the case of Tedhi Singh Vs. Narayan Das Mahant, in Crl.Appeal No.362/2022 reported in 2022 Live Law (SC) 275, in para No.9, it is held that;
" At the time, when the complainant gives his evidence , unless a case is setup in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal cannot be expected of the complainant to initially load evidence to show that he had the financial capacity -
However, the accused has a right to demonstrate that the complainant in a 36 C.C.27813/2018 particular case did not have the capacity and therefore, the case of the accused is acceptable which he can do by producing independent materials, namely, by examining his witnesses and producing documents by pointing to the materials produced by the complainant himself or through the cross examination of the witnesses of the complainant."
In the light of the recent verdict of the Hon'ble Apex Court in Tedhi Singh case, the accused shall raise probable defense by giving reply to the demand notice issued by the complainant. Here in the case on hand, as per my findings above, in spite of service of demand notice, the accused has failed to give her reply. So, the accused did not raise her probable defense at the earliest by giving her reply to the demand notice. Therefore, whether the complainant has proved his financial capacity or not can be looked into only after successful discharge of burden by the accused. In the complaint it is averred that, in the 2 nd week of January 2018, the amount received and Ex.P.1 cheque was issued on 16.07.2018, but during his cross examination on page No.8 PW.1 stated that, the cheque at Ex.P.1 was taken 37 C.C.27813/2018 while at the time of advancing the loan amount. The relevant portion of the cross examination, is reproduced as under;
" ಆರರರಪ ನನನ ಬಳ ಹಣ ತಗದಕಕರಎಡ ಸಎದರರದಲ ಒಎದಕ ಚಕಕ ನಕ ನ ಕರಟಟದದ ರಕ. ಅದರ ಚಕಕ ನಕ ನ ಈ ಪ ಪ ಕ ರಣದಲ ಹಜರಕಪಡಸದನ ಎಎದರ ಸರ. ಹಣ ಕರಟಟ ಸಎದರರದಲ ರದಪ ತಗಗ ಆರರರಪಯಎದ ಚಕಕ ಕ ಪಡದಕಕರಎಡದ ಎಎದರ ಸರ. "
The pleading in the complaint about issuance of cheque on 16.07.2018 after advancing the loan amount in the month of January 2018 and stating in the cross examination about receiving the said Ex.P.1 while advancing the loan amount, do not creates any doubt in the mind of the court about advancing hand loan amount of Rs.3,00,000/- and issuing cheque at Ex.P.1 and this not a probable material to raise doubt on the case put forth by the complainant with regard to defense taken by the accused contending that, the disputed cheque was issued to one S.Srinivas who inturn has given the same to present complainant to file present complaint. Except her self serving testimony as DW.1, she has not adduced any oral 38 C.C.27813/2018 evidence of material witness such as, so called Dayananda Reddy, who has referred by the accused in her examination in chief. Further, when the accused is denying the cheque at Ex.P.1 and also her signature on Ex.P.1(a) then, if at all truly she has not issued the cheque at Ex.P.1 and it do not bears her signature then, she could have filed an application before the court requesting to refer the cheque at Ex.P.1 to the hand writing expert, but no such efforts has been made by the accused. On the contrary, in her deposition and also in Vakalathnama, the signature of accused appears in full whereas the signature at Ex.P.1 appears to be half signature and when she denied her signature on Ex.P.1(a), but as per her own document produced at Ex.D.21, it makes her to surprise that, the signature on Ex.P.1(a) and the signature of accused at Ex.D.21 appears to be very similar and identical and by appearing these two signatures on Ex.P.1(a) and Ex.D.21, it can be said that, deliberately the accused has been putting her signatures differently on her deposition as well as on 39 C.C.27813/2018 the Vakalathnama of her counsel. Even on Ex.D.15, the another cheque issued in the name of S.Srinivas, the signature of accused appears to be same as the same signature found on Ex.P.1(a). During her cross examination, DW.1 has clearly admitted that she has a bank account in Indian Bank of Thally Branch, Krishnagiri District, Tamil Nadu, but deliberately she has not produced the account statement of the said bank. Instead of doing so, she has produced one bank account statement of Axis Bank, which is marked at Ex.D.11, even in this Ex.D.11 the name of accused is not reflecting as this account is standing in her name. Therefore, by Considering these material evidence, it can be said that, just to escape from the liability, the accused has made these un- successful attempts. I have carefully gone through the judgment copy of produced at Ex.D.24, wherein the Learned Magistrate has acquitted the accused on the findings that, the complainant has failed to prove his financial capacity to advance the huge hand loan of Rs.80,00,000/- of that case. Therefore, 40 C.C.27813/2018 the judgment produced at Ex.D.24, though the said case was filed by one S.Srinivas against the husband of the accused , but in the said case, two cheques were involved, which are connected to this case and the said judgment do not help the accused to get its assistance. By the oral testimony of DW.1, the accused has failed to raise probable defense before the court and also to prove the same on preponderance of probabilities. On the other hand, DW.1 herself admitted in her cross examination on page No.15 that, she has two bank accounts and have both the bank accounts and she has cheque facilities. By this admission of DW.1, an inference can be drawn on that, the cheque at Ex.P.1 drawn from her account. Therefore, the accused has failed to rebut the statutory presumptions under sections 118(a) & 139 of NI Act raised in favour of the complainant. On the other hand, though the onus do not shifts on the complainant and even otherwise to establish his financial capacity for advancing disputed hand loan of Rs.3,00,000/-, the complainant has produced his salary 41 C.C.27813/2018 slip at Ex.P.9 and employment identity card at Ex.P.10. As per Ex.P.9. the gross salary of complainant was Rs.89,988/- and take home salary of was Rs.83,514/- in the month of December 2020. The complainant also produced his bank account statement marked at Ex.P.8, it reflects about crediting his monthly salary to this account and the entry dated 10.01.2018, it reflects that, by issuing his self cheque, the complainant withdraw Rs.3,00,000/- from his account and the said date of withdrawal of amount is on 10.01.2018, the same entry very much corroborates the evidence of PW.1 that, he has advanced hand loan of Rs.3,00,000/- to the accused in the 2 nd week of January 2018. Further, by seeking this statement at Ex.P.8 coupled with his salary slip at Ex.P.9, I am of the considered opinion that, the complainant had a financial capacity at the relevant point of time to advance disputed hand loan amount of Rs.3,00,000/- to the accused. The objections raised while marking the documents i.e., Ex.P.9 & 10 do not survive as such, during the cross examination of PW.1 no 42 C.C.27813/2018 such material evidence has been elicited to disbelieve these two documents.
20. The Learned counsel for the complainant has relied two judgments reported in 2007(6) SCC 555 and AIR 2009 SC 386 in respect of deemed service of legal notice. When the notice was sent to the proper and correct address of the drawer of the cheque, in the case on hand as per my findings discussed above, as per the documents at Ex.P.5 & 6 since the notice at Ex.P.3 has been served to the accused, the question of applicability of these two precedents do not arise. The Learned counsel for the complainant has also relied the judgment at Sl.No.4 to 7 as listed above, by these judgments and even in the latest catena of decisions it has been held that, " Once the issuance of cheque and the signature thereon has been admitted, then the presumption under section 139 of NI Act shall lie in favour of the complainant and furthermore, the legal presumption under section 139 of NI Act also includes existence of legally 43 C.C.27813/2018 enforceable debt or liability. These relied judgments are applicable to the facts of the case on hand. The Learned counsel also relied another judgment of Hon'ble High Court of Karnataka reported in 2001(4) Kar.LJ. 122, wherein the issuance of blank cheque and filling of the said cheque by the drawee cannot be held invalidity cheque in view of the provisions of section 20 of NI Act and this ratio is perfectly applicable to the case on hand as such, the accused is denying her filling of the cheque at Ex.P.1. The Learned Prosecuting counsel relied another verdict of the Hon'ble High Court of Karnataka reported in 2002(5) Kar.L.J.516, wherein it is held that, " the sentence of fine amount which could be imposed shall not be below the amount dishonored cheque and the cost incurred by the drawee subject to limit of twice amount of the dishonored cheque". In the case on hand, the complainant has been in the legal battle all along for more than 4 years to get relief of the dishonored cheque. Therefore, I am of the considered opinion that, keeping in mind, the precedent of 44 C.C.27813/2018 the judgment, this court will impose reasonable and acceptable compensation to the complainant.
21. On the other hand, the Learned defense counsel also relied 4 judgments in support of his oral argument as listed above. The judgment reported in 2020(15) SCC 348, "wherein the facts of the case involved was about advancing the loan amount of Rs.20,00,000/-, whereas during cross examination it was admitted about receiving Rs.5,00,000/- as a hand loan." Based on this admission, the acquittal of the accused has been satisfied and restored by the Hon'ble Apex Court. In the second judgment reported in (2019) 5 SCC 418, wherein the precedent has been laid down that, "
To rebut the statutory presumption, the defense evidence shall be to the extent on preponderance of probabilities and not the extent to the beyond reasonable doubts". In another relied third judgment reported in (2013)1 SCC 329, "wherein the facts of the case was with regard to purchase of shares from the share broker and the disputed cheque 45 C.C.27813/2018 was issued to the share broker in respect of purchase of shares as a security and not issued towards any amount due to the complainant in share transaction." Accordingly, it was held that, the said dishonored cheque would not attract section 138 of NI Act. The Learned defense counsel has also relied the judgment of Hon'ble Apex Court in the case of Basalingappa Vs. Mudibasappa, which has been discussed by me while giving the above findings. The facts of the present case on hand and the facts found in the relied judgments are varied and the relied judgments are not applicable to the case on hand. Therefore, the accused has failed to rebut the statutory presumptions under sections 118(a) & 139 of NI Act raised in favour of the complainant. Hence, I answered point No.1 in the affirmative.
22. POINT NO.2: In view of the reasons stated and discussed above, the complainant has proved the guilt of the accused punishable under section 138 of N.I. Act It is worth to note that, the offence is of the nature of civil 46 C.C.27813/2018 wrong. Hence, it is proper to award sentence of fine, instead of awarding sentence of imprisonment. Accordingly, this court proceed to pass the following;
ORDER
Acting under section 255 (2) of
Criminal Procedure Code, accused is
hereby convicted for the offence
punishable under section 138 of
Negotiable Instrument Act and
sentenced to pay fine of
Rs.05,10,000/- (Rupees Five Lakhs
Ten Thousand only). In default, he
shall undergo simple imprisonment for 3 (Three) months.
Acting under section 357(1) of code of criminal procedure, it is ordered that an amount of Rs.05,00,000/-
( Rupees Five Lakhs only), there from shall be paid to the complainant as a compensation, remaining fine amount of Rs.10,000/- (Rupees Ten Thousand only) is defrayed to the 47 C.C.27813/2018 state for the expenses incurred in the prosecution.
The bail bond of accused stands canceled subject to appeal period.
Supply free copy of judgment to the accused.
{Dictated to the stenographer, transcribed and computerized by her, revised corrected and then pronounced in the open court on this 1 st day of June 2022}.
(BHOLA PANDIT) XX ACMM, Bengaluru.
ANNEXURE List of witnesses examined on behalf of complainant:
P.W.1 Sri. Muniraju.S, List of documents produced on behalf of complainant:
Ex.P.1 Cheque
Ex.P. 1(a) Signature of the accused
Ex.P. 2 Bank endorsement
48 C.C.27813/2018
Ex.P. 3 Copy of the legal notice
Ex.P. 4 & 5 Postal receipts
Ex.P. 6 Postal tracking report
Ex.P.7 Returned postal cover
Ex.P.8 Bank account statement
Ex.P.9 Salary certificate
Ex.P.10 Employ Identity Card
Ex.P.11 Statement of account
List of witnesses examined on behalf of accused:
D.W.1 Smt.Gayathri, List of documents produced on behalf of accused:
Ex.D.1 Notarized copy of Adhar card
standing in the name of
accused.
Ex.D.2 to 7 Receipts for making payment of
maintenance amount of the flat
to Vijaya Enclave apartments.
49 C.C.27813/2018
Ex.D.8 Postal cover
Ex.D .9 and 10 IT returns form No.6 for the year 2017-2018 and 2018- 2019.
Ex.D.11 Bank account statement of Axis Bank for the period from 01.04.2017 to 31.03.2018.
Ex.D.12 Certified copy of order sheet of 22nd ACMM Court, Bengaluru in CC.No.15582/2019.
Ex.D.13 Certified copy of complaint under section 200 of Cr.P.C.
Ex.D.14 Sworn statement of the complainant in that case.
Ex.D.15 and 16 Cheque and banker's memo of the said case.
Ex.D.17 Demand notice.
Ex.D.18 Postal track consignment report
in respect of the said case.
Ex.D.19 and 20 Certified copy of the RPAD endorsement and the bank deposit slip.
50 C.C.27813/2018
Ex.D.21 Certified copy of police
complaint lodged jointly by
present accused Gayathri
along with her husband
Govinda Reddy.
Ex.D.22 Reply notice issued by the
accused Gayathri Govinda
Reddy to the demand notice
issued by the present
complainant.
Ex.D.23 Speed post acknowledgment
copy.
Ex.D.24 Certified copy of judgment
passed in C.C.55627/2018 on
the file of 34th ACMM, Mayo
Hall, Bengaluru.
Ex.D.25 to 29 Photographs pertaining to the flats of Vijaya Enclave, Kumaradhara Block.
Ex.D.30 CD copy of pertaining to the
photographs at Ex.D.25 to 29.
XX A.C.M.M.,
Bengaluru.