Bangalore District Court
Sri. T. Shankar Reddy vs Sri. R.Geetha on 6 December, 2018
1 C.C.NO.8845 OF 2018
IN THE COURT OF THE XII ADDL. CHIEF METROPOLITAN
MAGISTRATE, AT BENGALURU
Dated this the 6th Day of December 2018
Present: Sri. Rajkumar .S.Amminbhavi., B.Com., LLB (Spl)
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
C.C.No. 8845/2018
Complainant: Sri. T. Shankar Reddy
S/o. Muniswamy Reddy
Aged about 52 Years
R/at. No.1096, First Floor, Triveni
Road, Yeshwanthpura,
Bengaluru-560 022.
(By Subhash., Adv)
- Vs -
Accused: Sri. R.Geetha
W/o. Kishore Kumar
Geetha Medicals & General Stores
No.1, 1st Cross, Devinagar New
Extension, Next to RMV Clusters
Lottegollahalli, RMV II Stage
Bengaluru-560 094.
(By. H.Abhishek Gowda., Adv)
Offence complained of: U/s. 138 of the Negotiable
Instruments Act
Plea of the accused: Pleaded not guilty
Final Order: Accused is Convicted
Date of order: 06.12.2018.
******
2 C.C.NO.8845 OF 2018
JUDGMENT
This is a complaint under Sec.200 of Cr.PC against the accused for the offence punishable under Sec.138 of the Negotiable Instruments Act.
2. The facts of the complaint in brief are that, both the accused and the complainant are known to each other for the past several years. On account of well acquainted with the complainant, the accused has approached the complainant and requested advancement the hand loan an amount of Rs.30,000/- during the 1st week of September 2017 to meet her business commitments and for other personal commitments and accordingly, considering the request of the accused and believing the words of the accused and on the humanitarian ground, the complainant has advanced an amount of Rs.30,000/- by way of cash on 25.09.2017 and on the same, the accused has agreed and undertaken that, she would repay the said amount within a period of four months. After lapse of stipulated on repeated request and demand made by the complainant to the accused for repayment of the borrowed loan amount and at that time, the accused has issued cheque bearing No.032391, dated: 23.01.2018 for a sum of Rs.30,000/- drawn on Bank of India, Sanjay Nagar Branch, Bengaluru- 560 094 in favour of the complainant and assured that, the said cheque would be honoured on its presentation and 3 C.C.NO.8845 OF 2018 accordingly, as per the assurance made by the accused, the complainant has presented the said cheque for encashment through his banker i.e., Indian Bank, RMV Extension Branch, Bengaluru, but it was dishonoured with an endorsement as "Funds Insufficient" on 25.01.2018 and thereafter, the complainant has informed the said fact to the accused, but the accused did not responded the same. Hence, the complainant had got issued the legal notice on 19.02.2018 by RPAD calling upon her to repay the said borrowed loan amount within 15 days from the date of receipt of this legal notice and it was duly served upon the accused. Despite of service of the legal notice, the accused neither paid the borrowed the loan amount nor replied the legal notice issued by the complainant. Hence, the complainant had constrained to file a complaint against the accused for the offence punishable under Section 138 of N.I. Act., which is well within time and based on the records available on record cognizance has been taken and registered it PCR.
3. After recording of the sworn statement of the complainant and complaint is registered in criminal case register and after issuance of summons to the accused, pursuant to the summons the accused had appeared before this Court through her counsel and enlarged on bail. The substance of accusation was recorded and read 4 C.C.NO.8845 OF 2018 over to the accused in her vernacular. She pleaded not guilty. Hence, claims for trail.
4. In order to prove the case of the complainant, the complainant got himself examined as PW.1 & got 5 documents marked as Ex.P.1 to Ex.P.5 and PW-1 has been fully cross-examined and the statement of accused under Section 313 of Cr.P.C., was recorded and the accused has denied the incriminating statement against her and the accused herself examined as DW-1 and none of the documents marked in support of her defence and during the course her cross-examination, the counsel for the accused has confronted the postal acknowledgment and therein signature of the accused and same are admitted and accordingly which are marked as Ex.P6 and therein signature of the accused which is marked as Ex.P6(a) and after completion of the defence evidence, the matter was posted for arguments.
5. Heard arguments.
6. The following points arise for my determination;
1. Whether the complainant proves that the accused had issued Cheque bearing No.032391, dated: 23.01.2018 for a sum of Rs.30,000/- drawn on Bank of India, Sanjay Nagar Branch, Bengaluru for discharge of the amount and when the said cheque presented for encashment, it 5 C.C.NO.8845 OF 2018 was dishonoured with an endorsement "Funds Insufficient" and after issuance of the legal notice she fails to repay the said amount and Thereby, the accused have committed offence punishable U/s. 138 N.I.Act?
2. What order ?
7. My answer to the above points are;
Point No.1 : In the Affirmative
Point No.2 : As per final order for the
following;
REASONS
8. POINT NO.1: On perusal of the evidence of PW-1 he has reiterated as per the averments made in the complaint and he has got marked 6 documents namely, cheque which is marked as Ex.P1, the signature of the accused therein which is marked as Ex.P1(a), bank endorsement which is marked as Ex.P2, the office of the legal notice which is marked as Ex.P3, postal receipt which is marked as Ex.P4, postal acknowledgment which are marked as Ex.P5 and Ex.P6 ad therein signature of the accused which are marked as Ex.P5(a) and Ex.P6(a) respectively.
9. During the course of cross of PW-1 he has deposed that, he being a Managing Director in Shashikiran Chit Funds Private Limited Company at Yeshwanthpura, 6 C.C.NO.8845 OF 2018 Bengaluru for the past 10 years and accordingly, he was and is looking after all the affairs of the said chit funds, but to that effect, he has not produced any documents, he volunters that, the said loan in question is hand loan transaction. He deposed that, his residential house and house of the accused are situated in the same locality and thereby, he know the accused for the past 10 years. He came to know about that, husband of the accused was and is running Midcal Store. He do not know whether the accused family how many members residing. He deposed that, he know the mobile number of the accused. He deposed that, during the month of September 2017 he was advanced the loan in question to the accused for her business purpose and at that time of advancement the loan in question, he was not obtained any documents from the accused. He deposed that, he was advanced the loan in question in his office in the presence of his staff one Sriram. It is true that, there is no impediment that, at the time of advanced the loan in question to the accused to obtain any documents from the accused. He denied the suggestion that, the accused who being the member of the alleged chit run by him and at that time, the accused has issued cheque in question and same has been misused and filed false complaint with an intention to get wrong full gain.
7 C.C.NO.8845 OF 201810. During the course of defence, the accused herself examined as DW-1 by way of oral evidence, wherein, she has specifically stated that, she know the accused for the last 10 years. She deposed that, she being the member of the alleged chit run by the accused an amount of Rs.1,00,000/- in the year 2016 and an amount of Rs.2,00,000/- in the year 2018 and at that time she had issued three signed cheques for the security purpose and out of the said three cheques, cheque in question and even after completion of the chit transaction, the complainant has failed to return the cheques which are issued by the accused for the security purpose. Hence, for all other reasons, she prays for dismiss the present complaint.
11. During the course of cross of DW-1 she had deposed that, she being the member of the alleged chit run by the complainant and at that time, she had issued cheque in question for the security purpose, but to that effect, she has not produced any documents. It is true that, there is no impediment that, to lodge the complaint against the complainant with respect to that, the complainant has failed to return the cheques which are issued for the security purpose even after completion of the chit transaction. She deposed that, she studied up-to SSLC. It is true that, Ex.P1 cheque belonging to her own bank 8 C.C.NO.8845 OF 2018 account and the signature found on the Ex.P1(a) is her own signature. She deposed that, she was having mobile and to the said mobile number, she was received any message from the Bank with respect to banking transaction. She denied the suggestion that, she was borrowed the loan amount of Rs.30,000/- from the complainant and for discharge the said loan amount, she had issued cheque in question. It is true that, address mentioned in the Ex.P5 is true and correct. It is true that, the legal notice duly served upon her.
12. On perusal of the averments made in the complaint and also documents produced by the complainant is that, it is an admitted fact that, even after issuance of the legal notice by the complainant to the accused prior to filing of the said complaint which was duly served and after receipt of the legal notice, the accused has not given reply notice. Therefore, prior to filing of the said complaint the complainant had complied all the necessary ingredients under Section 138 of N.I.Act. There is no dispute that, Ex.P1 cheque is belonging to her own bank account and the signature found on the Ex.P1(a) is her own signature.
13. It is case of the complainant is that, both the complainant and accused are known to each other and on account of well acquainted with the complainant, the accused has approached the complainant and requested 9 C.C.NO.8845 OF 2018 for the advancement of loan amount of Rs.30,000/- and accordingly, the complainant has advanced the loan an amount of Rs.30,000/- and subsequently, for discharge the loan in question the accused has issued cheque in question and assured that, the said cheque would be honoured on its presentation and after presentation of the said cheque, it was dishonoured and same has been informed to the accused, but the accused not responded the same and thereby, the complainant has got issued legal notice through his counsel and same has been duly served upon the accused and despite of service of the legal notice, the accused neither paid the borrowed loan amount nor replied the legal notice issued by the complainant. Hence, the complainant has filed the present complaint.
14. On the other hand, the accused has taken specific defence during the cross of PW-1 and during the course of defence evidence that, she was not at all borrowed the loan in question from the complainant and she was not all issued cheques in question to the complainant and further, she being the member of the alleged chit run by the complainant and at that time, she had issued cheque in question for the security purpose and even though after completion of the chit transaction, the complainant has failed to return the cheque in question which was issued by the accused for the security purpose and same has been 10 C.C.NO.8845 OF 2018 misused and filed false complaint with an intention to get wrong full gain, but to substantiate the same, she ought to have examine any the other chit member, she ought to have produce any documents that, she being the member of the alleged chit run by the complaint, except her oral testimony. Therefore, non-examination any of the other chit member and non production any documentary evidence is very much fatal to the alleged defence taken by the accused during the course of cross of PW-1 and in her defence evidence.
15. If really, she was not at all borrowed the loan in question from the complainant and she has not at all issued the Ex.P1 for discharge of the loan in question to the complainant and further, she being the member of the alleged chit run by the complainant and at that time, she had issued cheque in question for the security purpose and even though after completion of the chit transaction, the complainant has failed to return the cheque in question which was issued by the accused for the security purpose and same has been misused and filed false complaint with an intention to get wrong full gain, but to substantiate the same, she ought to have gave stop payment instruction to her banker, she ought to have take any legal action against the complainant, she ought to have challenged the cognizance taken by this Court. Therefore, non-performing 11 C.C.NO.8845 OF 2018 the aforesaid legal proceedings that itself, it is very much fatal to the alleged defence set-up by the accused during the course of PW-1 and during the course of her evidence.
16. There is no dispute that, Ex.P1 cheque is belonging to her own bank account cheque and signature found on the Ex.P1(a) is her own signature. Therefore, it can be presumed that, the accused has issued the Ex.P1 to the complainant knowing fully well without having sufficient funds in her bank account with an intention to defeat the claim of the complainant. Further, no ordinary prudent man will issue signed blank cheque to any other persons without having monetary transaction.
17. The drawer of the cheque have to take abundant precaution prior to issuance of cheque in question. Therefore, in the instant case also. It can be presumed that, no any ordinary prudent man will issue signed blank cheque to any other persons without having monetary transaction between themselves. Further, the complainant has proved his case by adducing cogent and corroborative evidence as per the section 138 of N.I.Act., on the other hand, the accused has failed to rebut her defence by adducing cogent and corroborative evidence as per the Section . Hence, the probability of the preponderance is of N.I.Act., higher on the side of the complainant, rather than the accused.
12 C.C.NO.8845 OF 201818. Ordinarily offence under Section 138 of N.I.Act "mensrea" is not essential, under Section 138 of N.I.Act , is bring into operation rule of strict liability, whereas, "mensrea" is essential ingredients in criminal offences. Therefore, The complainant has proved her case against the accused, since offence under Section 138 of N.I.Act element of Mensrea has been excluded in general public interest to curb the instances of dishonouring of cheques and to lend the credibility to the commercial transaction. Therefore, in this case also the accused knowing fully he was borrowed the loan in question from the complainant and for discharge the loan in question she has issued the Ex.P1 to the complainant. Since the present complaint is summary trial and quasi-criminal in nature, it is like recovery proceedings and punishment is fine or in default of it simple imprisonment.
19. Hence, in the light of the above observation, the complainant has successfully proved that, the accused has committed offence punishable under Section 138 of N.I. Act with these reasons, I am the opinion that, the complainant successfully established before the Court, the accused has issued Ex.P1 to the complainant for the legally recoverable debt including cost of interest. Therefore, I answer the point No.1 in the affirmative.
13 C.C.NO.8845 OF 201820. Point No.2 :- In view of my findings on Point No.1 in the affirmative, I proceed to pas the following...
ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
The accused shall pay a fine of
Rs.31,000/-. In default of payment of said
fine amount, the accused shall undergo simple imprisonment for Seven Days.
Further, ordered that, out of the said fine amount of Rs.30,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and remaining an amount of Rs.1,000/- shall be remitted to the state as fine.
The bail bond and surety bond of the accused stands canceled.
Free copy issued to the accused.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified, corrected and then pronounced by me in the open Court on this the 6th day of December 2018).
(Rajkumar.S.Amminbhavi) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
14 C.C.NO.8845 OF 2018ANNEXURE List of witnesses examined on behalf of the complainant:
PW-1 T. Shankar Reddy List of documents exhibited on behalf of the complainant:
Ex.P.1 Cheque Ex.P.1(a) Signature of the accused Ex.P.2 Bank endorsement Ex.P.3 Office Copy of the legal Notice Ex.P.4 Postal receipt Ex.P.5 & 6 Two postal acknowledgment
Ex.P.5(a) & 6(a) Signature of the accused List of witnesses examined on behalf of the accused :
DW.1 R. Geetha List of documents exhibited on behalf of the accused :
NIL XII Addl. Chief Metropolitan Magistrate, Bengaluru City.15 C.C.NO.8845 OF 2018
06.12.2018.
Complainant : RS Accused : HB Judgment.
(Vide separate judgment pronounced in the open Court) ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
The accused shall pay a fine of Rs.31,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for Seven Days.
16 C.C.NO.8845 OF 2018Further, ordered that, out of the said fine amount of Rs.30,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and remaining an amount of Rs.1,000/- shall be remitted to the state as fine.
The bail bond and surety bond of the accused stands canceled.
Free copy issued to the accused.
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
17 C.C.NO.8845 OF 2018Heard Inference 18 C.C.NO.8845 OF 2018