Bangalore District Court
Smt. Dhakshayani vs Smt. D.Lakshmi on 17 December, 2016
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITON
MAGISTRATE, BANGALORE CITY.
Dated this the 17th day of December , 2016,
PRESENT: SRI. NAGARAJEGOWDA.D, B.Com., LL.B.,
XXII Addl.C.M.M., Bangalore City.
JUDGMENT U/S 355 OF Cr.P.C.
C.C.No.20694/2015
Complainant : Smt. Dhakshayani,
Wife of Sri M.Jagadish,
Aged about 41 years,
House wife,
Residing at No.8,
Swasthi Road Cross,
Shanthinagar,
Bangalore - 560 027.
(By Sri. K Honnaiah .Adv.)
V/s.
Accused : Smt. D.Lakshmi,
Wife of Sri Balachandra,
Aged about 44 years,
Residing at No.21, Central Street,
Akki thimmanahalli,
Shanthinagar,
Bangalore - 560 027.
(By Sri P.S.Devadas Asso,.Adv.)
Date of Institution 24-08-2015.
Offence complained of U/s 138 of N.I.Act.
Plea of the accused Pleaded not guilty
2 C.C.No.20694/2015
Final Order Accused is convicted.
Date of Order : 17.12.2016.
The complainant filed the private complaint u/s 200 of
Cr.P.C alleging that, the accused person has committed an offence
punishable u/s 138 of N.I.Act.
REASONS
The brief facts of the complainant case is as follows:-
2. The complainant submits that the accused is friend of the
complainant and both of them are residents of same locality. The
accused and her husband were started to put up construction in
their property. In this regard they need money and as such they
have approached the complainant and her husband Sri
M.Jagadish for hand loan. Accordingly, on 23-9-2011 the
accused was received a sum of Rs.3,00,000/-. Out of which a
sum of Rs.2,91,000/- by way of cheque and a sum of Rs.9,000/-
by way of cash from the complainant. Again on 24-09-2011 the
accused has received a sum of Rs.3,00,000/- by way of cash from
the complainant and her husband as the accused faced lot of
difficulty in completing the construction of her house and as such
on 21-1-2013 the accused has received another sum of
3 C.C.No.20694/2015
Rs.4,00,000/- way of cash from the complainant and her
husband as hand loan. Again on 16-9-2013 the accused received
a sum of Rs.2,50,000/- from the complainant and her husband
by way of cash and on this behalf on 16-9-2013 the accused has
issued receipt for having received the aforesaid loan amount from
the complainant. The aforesaid loan amount paid by the
complainant and her husband to the accused through cheque and
also amount withdrawn from the bank and also out of their
savings. At the time of borrowing loan the accused assured the
complainant to return the said amount after let out her house on
lease or mortgage or by selling the house. But even after
completion of her building she did not show any interest to
discharge the loan amount due to the complainant. The
complainant demanded the accused to return the loan amount for
which the accused has issued post dated cheque bearing
No.506889 dated 5-7-2015 amounting to Rs.3,00,000/- and
cheque bearing No.506890 dated 10-7-2015 for Rs.3,00,000/-
and another cheque No.506892 dated 22-7-2015 for
Rs.6,50,000/- all the cheques are drawn on Canara Bank, Long
ford town branch, Bangalore , in favour of the complainant and
assured the complainant that the said cheques would be
honoured on its presentation. As per instruction of the accused,
4 C.C.No.20694/2015
the complainant has presented the said cheques on 23-7-2015 for
encashment of the cheques value of Rs.12,50,000/- through her
banker i.e. the Bharath Co-operative Bank Ltd., Jayanagar,
Bangalore -11 but the same were returned by the bank of accused
on 24-7-2015 with an endorsement "Funds insufficient".
Thereafterwards, the complainant got issued legal notice on 30-
07-2015 to the accused, calling upon the accused to pay the
cheques amount of Rs.12,50,000/- . The notice sent by RPAD was
served to the accused on 31-7-2015 . Inspite of receipt of legal
notice, she did not replied or complied the notice and thus
accused committed the offence punishable u/s. 138 & 142 of NI
Act and punish the accused in accordance with law and to award
suitable compensation , in the interest of justice and equity.
3. The accused appeared before this court and contest this
case by denying the entire case of complainant at the time of
recording of Plea of Accusation . In order to prove the case of
complainant, she adduced her oral evidence as PW-1 by way of
affidavit and examined her husband as PW-2 and got marked
Ex.P1 to Ex.P17 and at the time of cross-examination of DW-1
got marked Ex.P18 and these PW-1 & 2 have been fully cross
examined by the accused counsel and thus complainant closed
her side evidence.
5 C.C.No.20694/2015
4. There afterwards, the accused examined u/s.313 of
Cr.P.C. in which, she totally denied the entire case of complainant
. She in support of her denial, lead her oral evidence as DW-1 on
Oath and got marked Ex.D1 to Ex.D12 and at the time of cross-
examination of PW-1 got marked Ex.D1 and this DW-1 has been
fully cross-examined by the complainant counsel but he wanted
to lead further cross-examination of DW-1 , the same is hereby
rejected by this court stating that though the complainant
counsel cross-examined the DW-1 three times etc.. and thus
closed her side defence evidence.
5. In support of the case of complainant, the Ln.counsel for
complainant submitted written arguments by narrating the facts
and circumstances of the case and submits that the complainant
had fulfilled all the ingredients of the offence punishable u/s.138
of NI Act and hence, prays for convict the accused in accordance
with law
6 . In support of the case of accused, the Ln.counsel for
accused submitted written arguments by narrating the facts and
circumstances of the case and stated that the accused had given
rebuttal evidence to the case of complainant. In support of his
contention, he relied on the decisions reported in :
6 C.C.No.20694/2015
2013(3) KCCR 1940
2009 (1)KCCR 508
2014 (2) SCC
ILR 2014 Karnataka 6572
2009(1)DCR 420
2009(1) DCR 422
ILR 2008 Karnataka 4629
Accordingly, he prays for acquitting the accused in
accordance with law.
7. In order to prove the case of complainant, the
complainant adduced her oral evidence as PW-1 filed by way of
affidavit. In which, she reiterated complaint contention and
examined her husband Jagadish as PW-2 . He too also supported
the case of complainant and how the source of income comes to
the complainant and got marked Ex.P1 is the ºÀt ¸ÀAzÁAiÀÄ gÀ²Ãw
alleged to be executed by the accused and her husband in favour
of the complainant and in which, she undertaken to repay the
loan of Rs.12,50,000/- which was obtained from the complainant
as a loan after sale of their Site within March, 2015 and identified
the signature of both complainant and accused and also her
husband as per Ex.P1(a) to Ex.P1(d). In this receipt the signature
of accused and her husband was not in the proper place but after
7 C.C.No.20694/2015
putting the signature their names are entered above as
D.Lakshmi and Balachander. In order to prove the execution of
this receipt. The complainant has not examined the witnesses .
One of the witness by name B.Ramesh has put his signature on
the receipt. Ex.P2 to Ex.P4 are cheques alleged to be issued by
the accused and identified the signature of the accused as per
Ex.P2(a) to 4(a). These issuance of cheques in favour of
complainant for discharge of legal liability has been disputed by
the accused stating that the alleged cheque in question are issued
to one Krishna as security .But for what purpose the said cheques
are issued to the said Krishna is not stated by the accused . Ex.P5
to Ex.P7 are the bankers challan for having deposited the alleged
cheque in question for collection. Ex.P8 to Ex.P10 are the
endorsement issued by the bankers stating that Ex.P2 to 4
cheques are dishonoured due to "Funds insufficient". Ex.P11 is
the copy of legal notice. This notice does not contain the
signature of the complainant except her counsel. Ex.P12 & 13 is
the RPAD postal receipt and DTDC Courier receipt for having sent
legal notice to the accused. Ex.P14 is the postal
acknowledgement to show the legal notice sent to the accused by
RPAD was duly served . But accused contended that she has not
received any legal notice from the complainant but she admitted
8 C.C.No.20694/2015
that the addresses mentioned in the Ex.P11 legal notice belongs
to her. Further after issuance of Ex.P11 legal notice , the accused
and his wife made a galata against this complainant. Hence, the
complainant lodged complaint to the Police Commissioner,
Bangalore on 8-8-2015 for that got marked Ex.P15 is the copy of
complaint . Further in order to show the complainant had paid
an amount of Rs.2,91,000/- to the accused and also her husband
a sum of Rs.3,00,000/- on 23-9-2011 and 24-9-2011 in their
names by way of cheque for that got marked Ex.P16 is the pass
book of Corporation bank stands in the name of husband of
complainant. Ex.P17 is the pass book of Corporation Bank to
show the husband of complainant had made several money
transaction with the bankers. Ex.P18 is an endorsement issued
by the Ashoka nagar police station , the same to marked at the
time of cross-examination of DW-1 . Inspite of service of legal
notice, the accused did not choose to reply or comply the notice
etc..
8. On the basis of oral and documentary evidence of
complainant, prima facie complainant had proved that the
accused has committed an offence punishable u/s. 138 of NI Act.
9 C.C.No.20694/2015
9. In support of the case of complainant, the Ln.counsel
for complainant submitted written arguments by narrating the
facts and circumstances of the case and submits that the
complainant had fulfilled all the ingredients of the offence
punishable u/s.138 of NI Act and hence, prays for convict the
accused in accordance with law
10. The accused has denied the entire case of complainant
. In support of her denial, she lead her evidence as DW-1 on Oath
. In which she has stated that, she knows the complainant for
the last 10 years and she has not raised any loan from her but
she given the alleged cheque in question to the owner of Hotel viz.,
one Krishna and she admitted that signature found on alleged
cheque in question belongs to her but the contents of the cheque
not belongs to her and she has not received any demand notice
from the complainant but she lodged complaint against the
complainant and her husband before Ashok nagar police station
as per Ex.D1. This Ex.D1 has been lodged during the pendency
of this case , the same is admitted by DW-1 at the time of her
cross-examination . Hence, in order to support her case , she
after thought lodged this Ex.D1 complaint . Further in order to
show she made Gruhapravesha of her house for that,
Gruhapravesha Invitation card as per Ex.D2 and also in order to
10 C.C.No.20694/2015
show she obtained loan amount from the Oriental Bank of
Commerce and also she discharged the said loan amount for that
got marked Ex.D3 is the Bank statement of account and also
discharge letter issued by the bankers and also got marked
Canara Bank Loan sanction letter as Ex.D4 . Further on 26-2-
2016 she lodged complaint against the complainant husband for
threatening this accused for that, got marked copy of complaint
as Ex.D5. Apart from it, she lodged complaint to the Human
Rights Commission for that got marked copy of complaint as per
Ex.D6 . Further she has stated that on 19-4-2012 she made a
rental agreement with one Mr.Anand Kumar and on 1-8-2013 she
made rental agreement with one Vasanthkumar and also the shop
rental agreement with him and also on 1-12-2013 she made
rental agreement with one Veeresh for that got marked Ex.D7 to
Ex.D11 are the rental agreements and further got marked Ex.D12
is the Subscribers account of the year, 2010-2015 of Margadarshi
Chit Pvt. Ltd., to show this accused is one of chit member with
the said private limited. On the basis of chief examination of DW-
1 coupled with the documentary evidence , the accused made a
loan from the bankers for construction of her house but at the
time of cross-examination of DW-1, she admitted that she has
spent Rs.50,00,000/- for construction of her house and she
11 C.C.No.20694/2015
obtained loan amount from the bank a sum of Rs.15 lakhs and
she also obtained various loan amount from various persons. For
that she could not able to say their names and she admitted that
in the month of July, 2015 she had no bank balance of
Rs.12,50,000/- in her bank account. She admitted that the
alleged cheques in question are belongs to her and the signature
found on the cheques are belongs to her . She has not received
any demand notice for dishonour of the cheque . But she
admitted that addresses stated in Ex.P11 notice belongs to her
and she denied that she issued alleged cheque in question for the
repayment of the loan amount borrowed from the complainant.
Further she admitted that loan borrowed from the Canara Bank
has been repaid out of loan amount borrowed from the Oriental
Bank of Commerce etc.. Ex.P12 is ledger of accused to show she
doing business.
11. Further in her cross-examination , as per the rental
agreement one of the advocate also is under lessee of this accused
and she could not able to say his name. Further she admitted
that as per Ex.D2 statement of account stands in the name of
Lakshmi , proprietor though the accused is the Proprietor in that
company but at the time of raising loan in the bank, she given her
occupation as house wife . Except the denial of case of
12 C.C.No.20694/2015
complainant, accused has not produced any corroborative
evidence to disprove the case of complainant . though the
complainant counsel cross-examined the DW-1 on 16-8-2016
and 30-8-2016 and ultimately on 4-10-2016 inspite of it , he is
seeking further time to lead further cross-examination of DW-1 ,
same has been rejected by this court and taken the cross-
examination of DW-1 as fully made.
12. As per the defence taken by the accused, the accused
counsel cross-examined the PW-1 . In the cross-examination , she
has stated that this accused was introduced by her husband
through Krishna but she denied that through one Krishna and
the said Krishna is doing Real Estate but the said Krishna and
also doing finance business. Further in order to issue Ex.P11
legal notice to the accused, herself and her husband together
giving instruction to the advocate and in the notice, she has
specifically stated on which date the accused gave loan amount
but asked the loan amount during the year, 2011 for the purpose
of construction of building and the said amount has been given to
the accused but she could not able to say the exact date on which
she given the loan amount to the accused but she admitted that
in Ex.P1 e-stamp paper it is mentioned that the said e-stamp
paper was given in blank form except the signature of the accused
13 C.C.No.20694/2015
and her husband and also she admitted that signature and the
contents of Ex.P2 to Ex.P4 cheques are written in different ink
and in different handwriting . But she has stated ignorance about
the signature found on the cheque and also Ex.P14 postal
acknowledgement signature are different one. The amount given
to the accused a sum of Rs.3 lakhs was given by her father about
3 years back and she kept the money in her bank account for
that, she has produced bank pass book at Ex.P16 and Ex.P17 .
Further she admitted that as per Ex.P16 pass book on 24-9-2011
there is no name of this accused but she has stated that she
withdrawn the said amount by way of self but she denied that the
said amount has been used by herself was not given to this
accused etc.. and at the end of cross-examination of PW-1, there
was a money transaction along with this complainant and
Krishna and the alleged cheque in question was given to the said
Krishna , the same has been misused by her etc..
13. Likewise in the cross-examination of PW-2, he too also
denied the entire case of accused saying that alleged cheques in
question was issued to one Krishna and from Krishna , this
complainant has misused the alleged cheque in question and in
his chief examination, he has stated he is doing Govt.Job and he
is getting monthly salary and he has no sufficient knowledge
14 C.C.No.20694/2015
about if any amount given to anybody, usually obtain receipt etc..
and he do not know when the accused constructed his house but
during the year, 2010 for that, Gruhapravesha card has been
produced as per Ex.D1. After lodging of the police complaint
against the accused and her husband , the police have advised to
settled their dispute before the court of law and the amount given
to the accused is not disclosed in his income tax returns and he
admitted that he is follower of Shanthinagar MLA Harish and he
has used the accused in his political work and lodged the police
complaint against this accused though this accused has not
obtained any loan amount etc.. Except denial of contention of
complainant, the accused had failed to given rebuttal evidence to
the case of complainant.
14. In support of the case of accused , learned counsel for
the accused submitted written arguments by narrating the facts
and circumstances of the case and stated that the complainant
failed to prove for existence of legal liability she issued alleged
cheque in question . The accused had given rebuttal evidence to
the case of complainant and in support of his contention, he
relied on the decisions reported in :
2013(3) KCCR 1940(Smt. Lakshmi Subramanya Vs.
Sri B.V.Nagesh) in which it is held that , Sec 138 and
15 C.C.No.20694/2015
139 presumption arising out of dishonour of cheque -
Rebuttal of- standard of proof- Is one of
preponderance of probabilities.
2009 (1)KCCR 508(Sri A. Viswanatha Pai Vs. Sri
Vivekananda S.Bhat ) In which it is held that ...
whether the accused has to rebut the presumption
u/s.139 of the Act beyond all reasonable doubt...
etc.
ILR 2014 Karnataka 6572 (Sri H.Manjunath Vs. Sri
A.M.Basavaraju) In which it is held that , .......
Judgment of Acquittal is justified- As seen from the
complaint there is no statement as to when the
amount was actually given to the accused.......etc....
2009(1)DCR 420(Anjana Balkrishna Shewale Vs.
Chayya Baban Jagdale and anr) In which it is held
that .... Where the pleadings of complainant are not
established acquittal of accused is justified....etc
2009(1) DCR 422 ( Binod Kumar Lall Vs. State of
Jharkhand and anr) In which it is held that -
Dishonour of cheque - Acquittal- validity -
Appreciation of evidence - No source of income of
complainant- No evidence to show competency - No
factum as alleged was established - Consideration
of- Held - Where the pleadings are not established
acquittal of accused is justified... "
ILR 2008 Karnataka 4629 ( Shiva Murthy Vs.
Amruthraj) In which it is held that, .. Non
consideration of Existence of legally enforceable debt
failure of the complainant to prove- presumption
drawn merely on the basis of the conduct of the
accused--Legality of--.....etc..
16 C.C.No.20694/2015
On the basis of aforesaid decisions , learned counsel for the
accused prays for acquittal of the accused in accordance with law.
15. On the basis of oral and documentary evidence of both
complainant and accused and also the clear admission of DW-1 in
her cross-examination she obtained loan of Rs.15 lakhs from the
Bank and some other amount obtained from some other persons.
But she denied that for repayment of the said amount, she issued
Ex.P2 to Ex.P4 cheque in question to the complainant but to one
Krishna as a security, the same are dishonoured due to "Funds
insufficient" and inspite of issuance of demand notice, the
accused did not chose to comply or reply to the notice. As such,
whatever the decisions relied by the accused counsel are not fully
support the case of accused to show that the accused had given
rebuttal evidence to the case of complainant. As such accused is
liable for conviction . Accordingly, I pass the following:
ORDER
The complaint u/s. 200 filed by the complainant is hereby allowed. No costs.
The accused is convicted for the offence punishable u/s.138 of NI Act.
The accused is sentenced to pay a fine of Rs.12,55,000/-. Out of the said fine amount, the 17 C.C.No.20694/2015 complainant is entitled to an amount of Rs.12,50,000/- i.e. the cheque amount as compensation and rest of the amount of Rs.5,000/- is forfeited to State Exchequer and the same shall be paid by the accused to the complainant within a period of 30 days from the date of this order. Failing which, the accused shall undergo Simple Imprisonment for a period of one year.
Supply free copy of this judgment to the accused forthwith.
(Dictated to the Stenographer, transcribed and computerized by her, corrected and then pronounced by me in the open court on this the 17th day of December, 2016) (NAGARAJEGOWDA.D) XXII ACMM, Bangalore city.
ANNEXURE Witnesses examined for the Complainant:
PW.1 : Smt. Dhakhayani PW.2 M.Jagadish
Witness examined for the accused:
DW-1 : D.Lakshmi List of Documents marked for the Complainant:
Ex.P1 : Receipt On e-stamp paper Ex.P1(a) Signature 18 C.C.No.20694/2015 Ex.P2 to 4 Cheques Ex.P2 to 4a : Signature of the accused Ex.P5 to 7 : Bankers challan counterfoils Ex.P8 to 10 : Bank endorsements Ex.P11 Legal notice Ex.P12 & 13 : Postal receipt & courier receipt.
Ex.P14 : Postal acknowledgement Ex.P15 : Complaint Ex.P16 & 17 Bank pass books
List of Documents marked for the accused:
Ex.D1 : House warming ceremony card Ex.D2 Statement of account Ex.D3 Oriental Bank of Commerce letter Ex.D3a Deed of Discharge Ex.D4 Sanction memorandum Ex.D5 & 6 Complaint to police Ex.D7 & 8 Rental agreement Ex.D9 & 10 Shop rental agreement Ex.D11 Rental agreement, Ex.D12 Ledger XXII ACMM, Bangalore.19 C.C.No.20694/2015