Bangalore District Court
Smt.Vanitha.R vs Smt.G.Pandiyammal on 2 January, 2017
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 2nd day of January 2017
Present: Smt. Saraswathi.K.N, B.A.L., LL.M.,
XVI Addl.C.M.M., Bengaluru City.
JUDGEMENT U/S 355 OF Cr.P.C.,
Case No. : C.C. No.11112/2014
Complainant : Smt.Vanitha.R,
W/o.Raghupathi M.V.,
Aged about 42 years,
R/at.No.7/1,
16th Cross Road,
Bendre Nagar,
BSK 2nd Sage,
Bengaluru-70.
(Rep. by Sri.S.T.Junjappa.,
Adv.,)
- VS -
Accused : Smt.G.Pandiyammal,
W/o.Gurunathan,
Aged about 42 years,
R/at.No.1, 2nd Floor,
Ranadheera Kanntheerava
Road, Kadarenahalli,
BSK 2nd Stage,
Bengaluru-70.
(Rep. by Sri.Harish Babu.C &
ors., Adv.,)
2 C.C. No.11112/2014 J
Case instituted : 25.1.2014
Offence complained : U/s 138 of N.I. Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is Convicted
Date of order : 2.1.2017
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, the Accused is very well known to her from the past several years and as such in the year 2011, she approached her and demanded a loan of Rs.4,00,000/= to do scrap antique watches business for her husband and at that time, the latter had assured her that, she would repay the said loan amount with interest at the rate of 2% per month. Believing the words of the Accused, she paid the said loan of Rs.4,00,000/= on 2.2.2011 and the Accused had paid upto date interest every month on the above said principal loan amount of 3 C.C. No.11112/2014 J Rs.4,00,000/=. Finally when she demanded the Accused to repay the entire loan amount, the latter issued a cheque bearing No.819002 dated 30.10.2013 drawn on the Canara Bank, CBS Branch, Banashankari 2nd Stage, Bengaluru, towards the discharge of the loan amount. With an assurance that the said cheque would be honoured without fail on it's due date. As per the assurance of the Accused, when she presented the said cheque for payment on 4.12.2013, to her shock and surprise, it came to be returned with Bank endorsement dated 7.12.2013 for the reason "Funds Insufficient". Immediately she brought this fact to the notice of the Accused and demanded her to pay the cheque amount. However the Accused did not come forward to repay the same.
3. The Complainant has further submitted that, thereafter left with no other alternative, she got issued legal notice to the Accused on 4.1.2014 by RPAD and speed post. However the said legal notice has not been served upon the Accused, as the latter has intentionally not received the same by colluding with the postal authorities. Therefore there is deemed service of the legal notice. Inspite of it, the Accused has not come forward 4 C.C. No.11112/2014 J either to reply to the notice or to repay the cheque amount.
4. The Complainant has further submitted that, the dishonour of the cheque by the Accused has been malafide, intentional and deliberate. Feeling aggrieved by the conduct of the Accused, she has filed the present complaint praying that the Accused be summoned, tried and punished in accordance with Sec.138 of the Negotiable Instruments Act.
5. The Pre-summoning evidence has been led by the Complainant on 30.4.2014. Prima-facie case has been made out against the Accused and she has been summoned vide order of the same date.
6. The Accused has appeared before the Court on 3.3.2015, she has been enlarged on bail. The substance of the accusation has been read over to her on 1.8.2015, to which she has pleaded not guilty and has claimed the trial.
7. In her post-summoning evidence, the Complainant has examined herself as PW1 and has filed 5 C.C. No.11112/2014 J her affidavit, wherein she has reiterated the averments made in the complaint.
P.W.1 has also relied upon the following documentary evidence:-
Ex.P1 is the cheque, in which, the signature is identified by P.W.1 as that of the Accused as per Ex.P1(a), the Bank memo as per Ex.P2, the office copy of the legal notice as per Ex.P3, the Returned Postal Covers as per Ex.P4 and Ex.P5 respectively and the postal sharas as per Ex.P4(a) & 5(a) respectively.
8. The statement of the Accused under Sec.313 of Cr.P.C., has been recorded on 29.3.2016. Though the Accused has denied the incriminating evidence available against her, she has not chosen to lead her rebuttal evidence.
9. The learned counsel for the Complainant has filed his written arguments in which he has prayed for the conviction of the Accused on the ground that the Accused has admitted the loan transaction of Rs.4 lakhs with the Complainant while cross-examining the latter and she ahs also admitted her acquaintance with her as well the financial transaction. The Accused has admitted 6 C.C. No.11112/2014 J the cheque at Ex.P1 as well as her signature on it as per Ex.P1(a). It is further argued that the Accused has raised totally inconsistent defences and thereby her entire defence suffers from doubt, suspicion and improbabilities. Accordingly, prayed for her conviction.
10. Despite given sufficient opportunities, the Defence Counsel has not addressed her arguments.
11. I have considered the submissions and perused the record carefully.
12. Sec.138 of the Negotiable Instruments Act has been enacted to lend credibility to the financial transactions.
The main ingredients of the offence under Section 138 Negotiable Instruments Act are:-
(i) Drawing up of a cheque by the Accused towards the payment of the amount of money, for the discharge, in whole or in part, of any debt or any other liability;
(ii) Return of the cheque by the bank as unpaid;
(iii) The drawer of the cheque fails to make the payment of the said amount of money within 15 days of 7 C.C. No.11112/2014 J the receipt of the notice under the proviso (b) to Section
138.
The Explanation appended to the Section provides that, the "debt or other liability" for the purpose of this Section means a legally enforceable debt or other liability.
13. Apart from this, Sec. 139 of the Negotiable Instruments Act lays down a presumption in favour of the holder of cheque in the following terms:-
"It shall be presumed, unless the contrary is proved, that:-
The 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".
14. Also, Sec. 118 of the Negotiable Instruments Act states, "Until the contrary is proved, the following presumptions shall be made:-
(a) that every Negotiable Instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or 8 C.C. No.11112/2014 J transferred, was accepted, indorsed, negotiated or transferred for consideration;"
15. Thus, the Act clearly lays down the presumptions in favour of the Complainant with regard to the issuance of the cheque by the Accused, towards the discharge of his liability in favour of the Complainant.
16. Under the scheme of the Act, the onus is upon the Accused to rebut the presumptions in favour of the Complainant by raising a probable defence.
17. Such being the legal position, it would be pertinent to refer to the defences raised by the Accused to rebut the presumptions in favour of the Complainant in this case.
18. According to the Complainant, she has advanced a loan of Rs.4,00,000/= to the Accused on 2.2.2011, which the latter had agreed to repay with interest at the rate of 2% per month. According to the Complainant, the Accused has paid the upto date interest and thereafter, towards the repayment of the principal amount, the cheque in question has been issued by her favour of the former on 30.10.2013.
9 C.C. No.11112/2014 J19. In the back ground of this claim made by the Complainant, the first defence raised by the Accused in the present case is that, the Complainant has no financial capacity so as to have allegedly lent a sum of Rs.4,00,000/= to her.
20. In this regard, during her cross-examination, it is elicited from PW1 that, she has a monthly income of about Rs.15,000/= and after all her expenditure, she has a monthly savings of Rs.8,000/= and that she is not an income tax assessee. However it is pertinent to note that, though the Accused has questioned the financial capacity of the Complainant, during the course of her further cross-examination of the Complainant, the Accused has suggested to PW1 that, she has repaid the amount of Rs.4,00,000/= with Rs.2,00,000/= towards interest to her from 2011 to 2013. Thus this suggestion made to PW1 clearly goes against the defence of the Accused about the financial capacity of the Complainant. But subsequently it is seen that, the Accused has suggested to PW1 that, the latter has not lent any amount to her and that for the same reason, she has not collected any documents from her. This suggestion also goes to show 10 C.C. No.11112/2014 J that, on the same day, while cross-examining the Complainant, the Accused has taken up two inconsistent defences, thereby raising a serious doubt about her defence. Likewise it is elicited from PW1 that, she has not produced her Bank Statements before the Court and that she does not possess money lending license. Though the non-production of the said documents raises doubt about the case of the Complainant, the material admission on the part of the Accused that, she has repaid Rs.4,00,000/= towards the principal amount and Rs.2,00,000/= towards interest to the Complainant from 2011-13 clearly goes to prove that, the Complainant's claim in respect of her lending of Rs.4,00,000/= to the Accused is admitted by the latter.
21. Likewise it could be seen that, at one place the Accused has also taken a defence that, she had lodged a complaint with regard to the missing of the cheque at Ex.P1 from her house, but thereafter she has taken up a totally inconsistent defence at para No. 2 in page No.5 of the cross-examination of the Complainant on 15.11.2016 that there was a chit transaction, which was being run by the Complainant, in which, the chit transaction was between her husband and the Complainant and that in 11 C.C. No.11112/2014 J respect of the said chit amount, her husband had given the cheque in question to the Complainant only for the purpose of security and that she came to know that her cheque had been given by her husband to the Complainant only after the service of the summons to her by the Court. According to the Accused, it is only after the service of summons to her that, her husband informed to her that, he had availed a loan of Rs.2,00,000/= from the Complainant, but the latter has falsely mentioned the amount in the cheque as Rs.4,00,000/=. It is her further defence that the cheque for Rs.2,00,000/= was given by her husband as a security for the bid amount of Rs.2,00,000/- by him. With this suggestion raised by the Accused, it clearly goes to show that, the Accused has totally raised inconsistent defences, in her anxiety of probabalising her defence, because at one place, it is her defence that, her husband had availed a loan of Rs.2,00,000/= from the complainant, for the purpose of which, he had given the cheque at Ex.P1 to the latter, without her knowledge and immediately thereafter, she has taken a defence that the cheque at Ex.P1 was given by her husband to the Complainant, without her knowledge for the purpose of 12 C.C. No.11112/2014 J security for the bid amount of Rs.2,00,000/=. Now when the Accused is not certain and sure about the various defences that she has raised in respect of the cheque in quesition, none of the defences raised by her could be believed by this Court. Moreover the claim of the Accused that, the Complainant was running a chit transaction has been denied categorically by the Complainant. In such circumstance, the burden is upon the Complainant to establish before the Court that, the Complainant was running chit business, to which, her husband was one of the members. In this regard, there is no iota of evidence led by the Accused.
22. The Accused has also taken up a defence that, after her husband paid the entire bid amount to the Accused and sought for the return of her cheque, the Complainant failed to return the same and prolonged the matter on one pretext or the other. If this were to be true, nothing prevented the Accused or her husband from taking appropriate legal action against the Complainant. Likewise the explanation given by the Accused that, the Complainant has taken undue advantage of the fact of the mis-understanding between the Accused and her husband in their family is also not proved by her.
13 C.C. No.11112/2014 JMoreover the Accused or her husband could have examined any other member of the chit, if the Complainant were to really carry out chit business, in respect of which, the cheque in question is said to have been issued.
23. Lastly, it is pertinent to note that, the Accused has also raised a new defence about the cheque in question, in which, she has claimed that she had kept her 6 signed blank cheques in her house, for the purpose of a purchase of a two wheeler for her son, among which, her husband has given one signed blank cheque to the Complainant without her knowledge and that the has been misused by the Complainant and a false case has been foisted against her. However in order to prove even this defence theory, the Accused has not placed on record any material before the Court, except her self- serving testimony.
24. As a result, when the entire evidence of the Complainant, particularly her cross-examination by the Defence Counsel is appreciated carefully by the Court, keeping in mind the various defences raised by the Accused, it clearly goes to show that, the Accused has 14 C.C. No.11112/2014 J taken up totally inconsistent defences, by claiming once that the cheque in question was lost, in respect of which, she is said to have lodged a complaint, while, at one place claiming that the cheque in question was given to the Complainant by her husband for the purpose of security of the bid amount and at one place, claiming that her husband had availed a loan of Rs.2,00,000/= with the Complainant and at one place claiming that among the 6 signed blank cheques kept by the Accused in her house for the purpose of the purchase of the two wheeler for her son, the cheque in question is one of them, which has been given by her husband to the Complainant. With all these inconsistent defences, the entire defence of the Accused has been made to fall on the ground and thereby the Accused has utterly failed to probabalise her defence. Moreover throughout the course of the cross-examination of the Complainant, it is evident that, the Accused has no where disputed the fact that the cheque at Ex.P1 belongs to her and that Ex.P1(a) is her signature. The amount claimed under cheque in question is not a negligible amount, but it is a huge amount of Rs.4,00,000/=. In such circumstance, when the issuance of the cheque as well as the signature on it is admitted by 15 C.C. No.11112/2014 J the Accused, then the presumption under Sec.139 of the N.I.Act is to be raised in favour of the Complainant. Though the Accused has taken up a defence that, though the issuance of the cheque and the signature on it is admitted, but there existed no legally enforceable debt from her side in favour of the Complainant and that the cheque in question was not issued by her to the Complainant towards the discharge of the legally enforceable debt. But in this regard, as already discussed the Accused has totally failed in her attempt to probabalise her defence at least in preponderance of probabilities. It could be observed that, in her over anxiety of defending herself, the Accused has miserably failed and thereby the entire defence of the Accused has been made unbelievable and unacceptable. On the contrary the Complainant has proved beyond reasonable doubt that the cheque in question has been issued by the Accused in her favour towards the discharge of the legally enforceable debt.
25. In support of his arguments, the learned counsel for the Complainant has relied upon the following decisions:-
16 C.C. No.11112/2014 J1. In T.Vasanthakumar Vs., Vijayakumari, reported in 2015 AIR SCW 3040,
2. In C.C.Alavihaji Vs., Palapetty Muhammed and ano, reported in (2007) 6 SCC 555.
26. Thus for the reasons discussed above, I proceed to pass the following: -
ORDER By exercising the power conferred u/s 265 of Cr.P.C., the Accused is hereby convicted for the offence punishable u/s 138 of the Negotiable Instruments Act.
She is sentenced to pay a fine of Rs.4,25,000/- (Rupees Four lakhs Twenty Five Thousand only) within 30 days from today and in default of payment of fine, she shall undergo simple imprisonment for 6 (six) months.
Out of the fine amount so collected Rs.4,15,000/-(Rupees Four Lakhs Fifteen Thousand Only) is ordered to be paid to the Complainant as Compensation and the balance of Rs.10,000/- (Rupees Ten Thousand only) is ordered to be adjusted towards cost to the State exchequer.17 C.C. No.11112/2014 J
The bail bond and surety bond of the Accused stands cancelled.
Issue free copy of Judgment to the Accused forthwith.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her, verified, corrected and then pronounced by me in the open Court on this the 2nd day of January, 2017).
(SARASWATHI.K.N), XVI Addl.CMM., Bengaluru City.
ANNEXURE
1. List of witnesses examined on behalf of the Complainant:
PW.1 : Vanitha.R
2. List of documents exhibited on behalf of the Complainant:
Ex.P-1 : Original Cheque;
Ex.P-1(a) : Signature of the Accused;
Ex.P-2 : Bank memo;
Ex.P-3 : Copy of the Legal Notice;
Ex.P-4 : Returned postal cover;
Ex.P-5 : Returned Postal cover;
Ex.P-4(a) & : Postal sharas.
5(a)
18 C.C. No.11112/2014 J
3. List of witnesses examined on behalf of the Accused:
- Nil -
4. List of documents exhibited on behalf of the Accused:-
- Nil -
(SARASWATHI.K.N), XVI ACMM, Bengaluru City.19 C.C. No.11112/2014 J
2.01.2016 Judgment pronounced in the open court vide separate order.
ORDER By exercising the power conferred u/s 265 of Cr.P.C., the accused is hereby convicted for the offence punishable u/s 138 of the Negotiable Instruments Act.
She is sentenced to pay a fine of Rs.4,25,000/- (Rupees Four lakhs Twenty Five Thousand only) within 30 days from today and in default of payment of fine, she shall undergo simple imprisonment for 6 (six) months.
Out of the fine amount so collected Rs.4,15,000/-(Rupees Four Lakhs Fifteen Thousand Only) is ordered to be paid to the Complainant as Compensation and the balance of Rs.10,000/-
(Rupees Ten Thousand only) is ordered to be adjusted towards cost to the State exchequer..
20 C.C. No.11112/2014 JThe bail bond and surety bond of the Accused stands cancelled.
Issue free copy of Judgment to the Accused forthwith.
(SARASWATHI.K.N), XVI Addl.,Chief Metropolitan Magistrate, Bengaluru City.
21 C.C. No.11112/2014 J