Bangalore District Court
M/S.Credit Access Grameen Limited vs Mrs.Vijaya Mallesh Hampannavar on 25 October, 2022
KABC030512172021
Presented on : 03-08-2021
Registered on : 03-08-2021
Decided on : 25-10-2022
Duration : 1 years, 2 months, 22 days
IN THE COURT OF XXXVIII ADDL.CHIEF METROPOLITAN
MAGISTRATE, BENGALURU
Present : Sri. P. Shivaraj,
B.Com. LL.B.
XXXVIII A.C.M.M Bengaluru
Dated this the 25th day of October - 2022
C.C. NO : 17845/2021
COMPLAINANT: M/s.Credit Access Grameen Limited
(Formerly known as Grameen Financial Services
Pvt. Ltd.)
Having its head office at No.49,
next to Rajalakshmi Kalayanamantapa
Jayanagar 8th Block
Bengaluru560 052
Rep.by its Asst. Manager and Authorized
Signatory Sri.Santhosh Kumar
S/o.R.Nonaya, 38 yrs.
(Smt.R.S.Premalatha, Advocate)
`
// VS //
ACCUSED: Mrs.Vijaya Mallesh Hampannavar
W/o.Santhosh Mallesh Hampannavar
No.164, Maramma Galli, Devalatti
Belagavi591 131.
(Rep. By Sri.Rajakumar.M, Advocate)
Offence : U/s/ 138 of N.I Act of 1881.
2 C.C.No.17845/2021
Plea of accused : Pleaded not guilty
Final Order : Accused is convicted
Date of judgment : 25/10/2022.
Sd/-
(P. SHIVARAJ)
XXXVIII A.C.M.M.
Bengaluru.
: J U D G E M E N T :
The complainant company is the private limited
company, its authorized person Sri.Santhosh Kumar has
filed this private complaint U/s 200 of Cr.P.C. against the
accused alleging that, accused has committed the offence
punishable under section 138 of Negotiable Instrument
Act, 1881( For short N.I.Act,1881).
2. Complainant case is as follows:
The complainant company is engaged in financial
business having its office at Bengaluru and one of the
branch in Belagavi.
On 31/7/2018 accused has borrowed loan of
Rs.1,00,000/ from the complainant company from
Belagavi branch for the business purpose i.e., Grameen
Udyog product and she has executed documents as per
terms and conditions of the complainant company.
Accused has failed to repay the aforesaid amount as
agreed by her. Accused is due to pay Rs.83,336/. In
order to repay the said loan amount, accused has issued
3 C.C.No.17845/2021
the following cheques in favour of the complainant
company which is drawn on IDFC Bank, Belagavi branch.
Date Cheque No. Amount
05/03/2021 000001 Rs.33,334/
05/03/2021 000002 Rs.33,333/
Total Rs.66,667/
3. As per the instructions of the accused
complainant company presented the aforesaid cheque for
encashment through its banker. The aforesaid cheque
was returned dishonoured with an endorsement "Funds
Inssuficient", in the accused bank account, to that effect,
complainant company received the cheque return memo
from its banker on 8/3/2021. Complainant company
informed the aforesaid fact to the accused and it has
issued legal notice by way of RPAD to the accused on
5/4/2021 and said notice was duly served on
12/04/2021. Further, accused failed to repay the cheques
amount. Complainant company alleged that, accused has
intentionally not maintained the sufficient amount in her
bank account to honour the cheques. Inasmuch, accused
has committed the offence punishable under section 138
of N.I. Act. On the aforesaid allegations, the complainant
company approached this court and prays this court to
punish the accused and to award the compensation.
4. After registering the case, Cognizance taken of
the offence punishable U/s 138 of N.I.Act and recorded
4 C.C.No.17845/2021
the sworn statement of the authorized person of the
complainant company. On finding primafacie case,
process was issued to the accused.
5. After service of the summons to the accused,
accused has appeared before the this court through her
counsel, and she got released on bail. In compliance with
provision of section of 207 of Cr.P.C. papers of the
prosecution were supplied to the accused. The substance
of the accusation is readout to her, in the language
known to her, she pleaded not guilty and submitted that,
she is having defence to make.
6. In order to prove the guilt of the accused, the
authorized person of the complainant company, adopted
the evidence led by him at presummoning stage as his
Examinationinchief and got marked 11 documents
which are at Ex.P1 to P11 and he is fully cross examined.
Accused statement under Sec.313 of Cr.P.C. is
recorded. She denied the same and submitted that, she is
having evidence to lead. Accused herself examined as
DW.1 and she is fully cross examined.
7. Both the sides are permitted to file their written
arguments on merits, complainant has failed to comply
the same. Inasmuch the arguments from the complainant
side is taken as not addressed/canvassed. Counsel
appearing for the accused filed written arguments on
5 C.C.No.17845/2021
merits. I have perused the same along with the materials
available on record.
8. The following points that arise for my
determination.
:P O I N T S:
1. Whether the complainant company
proves that, the accused has committed
the offence punishable U/s 138 of the
N.I Act, as alleged in the Complaint?
2. What Order?
9. After carefully going through the materials
available on record and taking into consideration of facts
and circumstances of the case, my finding to the above
points are as follows:
Point No.1: In the Affirmative.
Point No.2: As per final order, for the following:
REASONS
10. Point No.1: PW.1 is the authorised person of
the complainant company, he reiterated the complaint
averments in his sworn statement affidavit which is
treated as his examinationinchief.
11. Accused has admitted the issuance of cheque
to the complainant company as per the Ex.P4 and P5 and
her signature thereon. Complainant company has
established the fact of issuance of cheque by the accused
inasmuch, the initial statutory presumption attached to
6 C.C.No.17845/2021
the cheques has to be raised in favour of the complainant
company as per Sec.118, 139 of NI Act. Accused has not
chosen to give reply for the mandatory legal notice issued
by the complainant company as per Ex.P.8 and it is one
of the strongent ground to hold and infer that cheques in
question are issued by the accused for the purpose of
discharging her liability.
12. In order to rebut to initial statutory
presumption attached to the cheque, accused has cross
examined PW.1. PW.1 admitted that he do not know the
sanctioned loan amount and date of issuance of the loan
and loan repayments details of the accused. He clearly
deposed that they have not secured the cheques for
security purpose. He deposed that they have issued t he
manadatory legal notice to the correct address of the
accused.
13. Accused in her examination in chief she
admitted the fact of availing loan of Rs.1,00,000/ from
the complainant company. She contended that she has
repaid the entire loan amount and complainant company
has failed to inform the fact of clearance of her loan. She
contended that she has misplaced the receipts issued by
the complainant company for having repaid the loan
installment amount and complainant company has failed
to give the duplicate copy of the said receipts. She further
contended that she has given two signed blank cheque to
7 C.C.No.17845/2021
the complainant company for the purpose of security of
the loan.
14. In the cross examination of DW.1 she admitted
the loan amount, she deposed that she cannot say the
details of loan installment amount. She deposed that she
has thrown away the loan repayment receipts issued by
the complainant company. She categorically admitted
issuance of notice by the complainant company as per
Ex.P.8 and she clarified the fact by admitting that
complainant company has demanded the repayment of
due loan amount of Rs.83,336/
15. On careful perusal of the evidence on record, it
is evident that accused has admitted the fact of
borrowing of loan of Rs.1,00,000/ from the complainant
company and she has also admitted the issuance of the
cheques. In the cross examination of PW.1, nothing is
suggested regarding the details of repayment of loan
amount, throwing of receipts as contended by the
accused. Further, nothing is suggested to probabilize the
fact that accused has requested the complainant
company to issue the duplicate copy of the receipts. If the
contention of the accused is really true, she could have
suggested the details of loan repayment to PW.1 and she
could have effortlessly suggested the fact i.e., when she
has requested the complainant company to issue the
copy of the receipts. Admittedly, accused has not taken
8 C.C.No.17845/2021
any lawful steps against the complainant company for
nonissuance of duplicate copy of receipts for having
cleared the loan amount. Accordingly, the aforesaid
contentions are not probable. It is also true that no
person will issue the cheque without any cause and no
borrower will go on paying the loan installment amount
with out verifying the status of the same and no one will
keep mum if the money lender fails to give the copy of
loan repaid receipts. If the version of the accused is
really true she could have fairly deposed the details of her
defence in 313 statement but she kept mum. Mere
contending that she/accused has repaid the loan
amount, misplaced her loan paid receipts, and
complainant company has not issued the duplicate
receipts are not sufficient and it cannot be accepted as
probable without the probable and cogent evidence to
substantiate and to probabilize the aforesaid contentions.
Accused could have effortlessly established before this
court that she is having sufficient balance in her bank
account as on the date of the cheque. Accused has failed
to comply the same and she failed to elicit the material
facts from the mouth of PW.1 to dislodge and destroy the
complainant allegation. As per the aforesaid discussion
on the feeble, unsubstantiated contention of the accused,
the version of the complainant company cannot be
doubted. Considering the looking into the evidence placed
9 C.C.No.17845/2021
on record, this court is of firm opinion that the intitial
statutory presumption attached to the cheques cannot be
said to have been rebutted by the accused.
16. Considering and looking into the oral and
documentary evidence on record it is evident that,
accused has not placed any cogent and probable evidence
to convince the court that, the presumed facts does not
exist. Accused has not placed probable evidence to
dislodge the presumption which is raised in favour of
complainant company. In other words accused has not
placed any material to show that, alleged debt as alleged
by the complainant does not exists. Inasmuch the initial
statutory presumption attached to the cheque in question
cannot be said to have been rebutted by the accused. The
unsubstantiated bare suggestions made to PW.1 is not
sufficient to revert back the onus on the complainant
company to prove its case beyond reasonable doubt.
Hence with the aforesaid discussion based on the
materials available on record and by considering the
facts, and attending circumstance of the case, I am
answering this point in the Affirmative.
17. POINT NO.2: For the foregoing reason and
discussion, on point No.1, I proceed to pass the following:
ORDER
Exercising the power conferred U/sec 255(2) of Cr.p.c. accused is convicted for the 10 C.C.No.17845/2021 offence punishable U/s.138 of the Negotiable Instrument Act,1881.
Accused is sentenced to pay a fine amount of Rs.67,667/ to the complainant company with in two months from the date of this order, in default he has to under go simple imprisonment for a period of three months.
Out of the said fine amount, an amount of Rs.66,667/ is ordered to be paid to the complainant company as compensation. The remaining amount of Rs.1,000/ shall be confiscated to the state towards litigation expenses.
The bail bond and surety bond of accused shall continue for next 6 months as per Sec.437A of Cr.P.C.
Office is directed to supply the free copy of this judgment to the accused forthwith.
(Dictated to the stenographer and transcribed and computerized by her, corrected by me on computer and then pronounced by me in the open court on 25th day of October 2022) Sd/ (P. SHIVARAJ) XXXVIII A.C.M.M, Bengaluru.
11 C.C.No.17845/2021ANNEXURES:
1) List of Witnesses Examined on behalf of Complainant:
PW.1 : Sri. Santhosh Kumar.
2) List of exhibits marked on behalf of Complainant:
Ex.P.1 : C/c of Certificate of Incorporation, Ex.P.2 : C/c of Memorandum of Articles of Association. Ex.P.3 : Authorization letter. Ex.P.4,5 : Original Cheques. Ex.P.6,7 : Cheque return memos. Ex.P.8 : Office copy of the Legal Notice. Ex.P.9 : Two Postal receipts. Ex.P.10,11 : Postal acknowledgements.
3) List of Witnesses Examined on behalf of the Accused: DW.1 Mrs.Vijaya Mallesh Hampannavar.
4) List of Witnesses Examined & exhibits marked on behalf of the Accused: Nil Sd/ (P. SHIVARAJ) XXXVIII A.C.M.M. Bengaluru.12 C.C.No.17845/2021
Complainant and accused are absent.
Considering the intention of Sec.353(6)(7) and 465 of Cr.P.C the judgment and order of the sentence is pronounced in the absence of the accused.
(Judgment pronounced in Open Court vide separate order ) ORDER Exercising the power conferred U/sec 255(2) of Cr.p.c. accused is convicted for the offence punishable U/s.138 of the Negotiable Instrument Act,1881.
Accused is sentenced to pay a fine amount of Rs.67,667/ to the complainant company with in two months from the date of this order, in default he has to under go simple imprisonment for a period of three months.
Out of the said fine amount, an amount of Rs.66,667/ is ordered to be paid to the complainant company as compensation. The remaining amount of Rs.1,000/ shall be confiscated to the state towards litigation expenses.
The bail bond and surety bond of accused shall continue for next 6 months as per Sec.437A of Cr.P.C.
Office is directed to supply the free copy of this judgment to the accused forthwith.
(P.SHIVARAJ) XXXVIII A.C.M.M. Bengaluru.
13 C.C.No.17845/2021 14 C.C.No.17845/2021