Bangalore District Court
Smt. Saroja.C.V vs Smt. Gopamma on 7 August, 2024
KABC030564842019
IN THE COURT OF THE XV ADDL. CHIEF JUDICIAL
MAGISTRATE, AT BANGALORE
Dated this the 7th day of August 2024
PRESENT: Smt. Namrata Rao. K.S
B.A.L, L.L.B., M.B.L.,
XV ACJM,.
BENGALURU.
C.C.No.17889/2019
Complainant : Smt. Saroja. C.V
W/o Late N. Ramachandra
Aged about 59 years,
R/at No.U-67,
Pipeline, 3rd cross
Krishnappa Block,
Malleshwaram,
Bengaluru-560 003.
(By Sri. Dhanaraj. H.S., Advocate )
V/s
Accused : Smt. Gopamma
W/o Gopinath,
Aged about 55 years,
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C.C.No.17889/2019
First Division Assistant,
Office of the Bengaluru
Rural Jilla Panchayath,
Kempegowda Road,
Gandhinagar,
Bangalore-560 009.
(By Sri. Abhishekh Gowda. H-
Advocate )
Cognizance taken on 05.08.2019
Plea recorded on 14.03.2022
Offence alleged U/s 138 NI Act
Evidence commenced on 05.08.2019
Evidence closed on 27.02.2023
Judgment pronounced on 07th day of August 2024
Final order Convicted
JUDGMENT
This case emanates from the complaint filed under section 200 of the CrPC alleging the commission of offence punishable U/s 138 N.I.Act against the accused.
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2. The case of the complainant in nutshell is as under:
The complainant and the accused having known through a common friend, entered into this financial transaction. During the last week of July 2015, in the presence of Smt. Rajamma the common friend, accused requested the complainant for a hand loan of Rs.7,75,000/- on interest basis and promised to repay the same within 30 months. The complainant lent Rs.7,75,000/- on 10.09.2015 at the rate of 9% p.a.
3. The accused executed an on demand pronote with consideration receipt in favour of the complainant. The accused paid the interest for 12 months amounting to Rs.70,000/- on every month 4 C.C.No.17889/2019 till August 2016. During the last week of February 2018, the husband of complainant suffered health issues and hence on 02.03.2018 the complainant and her husband demanded the accused to repay the amount with interest.
4. The accused issued two post dated cheques bearing Nos.074950 dated 15.03.2018 for Rs.7,75,000/- drawn on The Karnataka Bank Ltd, Kasturba road branch, Bengaluru and cheque bearing No.337425 dated 17.03.2018 for a sum of Rs.1,00,000/- drawn on Andhra Bank, Gandhinagar branch, Bengaluru towards the repayment of the outstanding amount. Upon presentation, the cheques were dishonoured for Account being Closed on 17.04.2018. The legal notice dated 03.05.2018 was issued to the accused. The accused has replied 5 C.C.No.17889/2019 to the said legal notice. Without any forego, the complainant has filed this complaint.
5. On presentation of the complaint, the cognizance for the offence was taken. Pursuant to the issuance of the summons, the accused made appearance before this court and the accused is on bail throughout the trial.
6. On compliance of Section 207 of Cr.P.C, the plea was recorded. The accused pleaded not guilty, claimed defense.
7. The Complainant has examined herself as PW.1 and one other witness namely Varamahalakshmi is examined as PW.2 and Ex.P1 to Ex.P15 are marked. The statement of the accused u/S 313 statement was recorded. The accused has 6 C.C.No.17889/2019 denied all the incriminating evidence against him. The accused has examined as DW.1 and eight documents are marked on her side.
8. I have given a careful consideration to the arguments advanced by the counsel for both sides. I have carefully perused the records.
9. In view of the materials placed on record, The following points arise for my consideration:
1. Is there a legally recoverable debt?
2. Whether the complainant proves that the accused has committed the offence punishable under section 138 of N.I.Act?
3. What Order?
10. My findings for the above points are:
Point No.1 : In the Affirmative 7 C.C.No.17889/2019 Point No.2: In the Affirmative Point No.3: As per the final order for the following REASONS
11. POINT No.1: I have already narrated the case of the complainant in nutshell. At first it is to be noted that the acquaintance of the complainant and accused are not disputed. Further the cheque and its signature is also not disputed. Therefore necessarily a presumption has to be raised in favour of the complainant that Ex.P1 was issued in discharge of a legally recoverable debt.
12. The Hon'ble Apex Court in Rangappa V/s Mohan reported in 2010(11) SCC 441 has held that Once the cheque relates to the account of accused and he accepts and admits the signature on 8 C.C.No.17889/2019 said cheque, then initial presumption as contemplated under Sec.139 of N.I.Act has to be raised by the court in favour of the complainant.
13. As a presumption is raised, the onus shifts on the accused to prove that the cheque was not issued to the complainant in discharge of a legally recoverable debt or probabalise his defence on the hilt of preponderance of probabilities. The defence set by the accused is four layered:
1. The cheque was lost.
2. The accused had given a blank cheque and complainant has filled it up.
3. Ex.P1 is a Non-CTS cheque and therefore it was given way back pertaining to a different transaction.
4.The complainant had no financial capacity 9 C.C.No.17889/2019 to lend such an amount of Rs.8.75 lakhs to the accused.
Lost Cheque
14. Needless to state that the accused can probabilise his case by cross examining the complainant's witness and also lead positive evidence. So far as the defence of cheque being lost, I find it mutually destructive with the other defences are concerned. If at all the cheque was lost then the evidence that the cheque was issued way back for a different transaction and it was a blank cheque given to the complainant would not survive. On perusal of the cross examination, the answer to the statement of accusation and 313 statement, I find it that the defence of cheque being lost is made as an after thought.
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15. No doubt, in the examination in chief of DW1, the accused has stated that the cheque was lost. But no documents are placed before the court to show the efforts made by the accused to ensure that the lost cheque is not misused. Neither the police complaint is filed nor the bank is informed about it. There is no explanation as to how the cheque was lost. Therefore I do not find this contention of the accused as a probable defense. Blank Cheque
16. So far as the cheque being given to the complainant without filing it, the Hon'ble Apex Court has laid down that when the accused issues a blank cheque in favour of the complainant he gives the liberty to the complainant to fill it. Such a 11 C.C.No.17889/2019 defence that the complainant has filled blank cheque cannot come to the rescue of the accused. In the present case, it is not the defence of the accused that the complainant has used force, coersion or any other methods for extracting the cheque. It appears from the evidence and other materials on record that the cheque in question was signed and was voluntarily handed over to the complainant. Therefore the defence of the accused that the complainant has took the blank cheque and filled it holds no water. I rely upon the dictum of the Honble Apex Court in Oriental Bank of Commerce V/s Prabod Kumar Thivari in Criminal Appeal No 1260 of 2022 (Arising out of SLP (Crl) No 9836 of 2019) dated 16.08.2022 has held as under
"14. In Bir Singh v. Mukesh Kumar, after 12 C.C.No.17889/2019 discussing the settled line of precedent of this Court on this issue, a two-Judge Bench held:
33. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be 13 C.C.No.17889/2019 attracted.
34. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.
[...]
36. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a 14 C.C.No.17889/2019 debt."
The above view was recently reiterated by a three-Judge Bench of this Court in Kalamani Tex v. P. Balasubramanian.
15. A drawer who signs a cheque and hands it over to the payee, is presumed to be liable unless the drawer adduces evidence to rebut the presumption that the cheque has been issued towards payment of a debt or in discharge of a liability. The presumption arises under Section 139."
NON CTS CHEQUE:
17. It is the contention of the accused that Ex.P1 is a Non-CTS cheque and it was given way back for a different transaction. Para 18 & 19 of the cross examination of PW.1 reflects this defence. 15
C.C.No.17889/2019 Para 18 runs as under:
"ನಿಪಿ.1 ಮತ್ತು 2 ರಲ್ಲಿರುವ ಚೆಕ್ಕುಗಳನ್ನು ತೋರಿಸಿ ಈಗ ಹಾಲಿ ಬರುವ ಚೆಕ್ಕುಗಳು ಯಾವ ರೀತಿ ಇರುತ್ತವೆ ಎಂದು ನೋಡಿರುತ್ತೀರಾ ಎಂದು ಕೇಳಲಾಗಿ ಸಾಕ್ಷಿಯು ನೋಡಿರುತ್ತೇನೆ ಎಂದು ಹೇಳುವರು. ನಿಪಿ.1 ಮತ್ತು 2 ಹಳೆಯ ಚೆಕ್ಕುಗಳಾಗಿದ್ದು Non CTS ಚೆಕ್ಕುಗಳಾಗಿರುತ್ತವೆ ಎಂದು ಕೇಳಲಾಗಿ ಸಾಕ್ಷಿಯು ಆರೋಪಿಯೇ ಅದನ್ನು ಬರೆದುಕೊಟ್ಟಿರುತ್ತಾರೆ ಎಂದು ಹೇಳುವರು. ನಿಪಿ.1 ಮತ್ತು 2 ಚೆಕ್ಕುಗಳ ಹಳೆಯ ಚೆಕ್ಕುಗಳಾಗಿದ್ದು ಹೊಸ ಚೆಕ್ಕುಗಳನ್ನು ಕೊಡಿ ಎಂದು ಕೇಳಿರುವುದಿಲ್ಲ್ಠ ."
The relevant portion of para 19 runs as under:
"ನಿಪಿ.1 ಮೂವತ್ತು ವರ್ಷಗಳ ಹಿಂದಿನ ಚೆಕ್ಕು ಮತ್ತು ನಿಪಿ.2 ಇಪ್ಪತ್ತೆೃದು ವರ್ಷಗಳ ಹಿಂದಿನ ಚೆಕ್ಕು ಆಗಿರುತ್ತದೆ ಎಂದು ಕೆಪೀಳಲಾಗಿ ಸಾಕ್ಷಿಯು ಅವರು ಕೊಟ್ಟಿರುವುದನ್ನು 16 C.C.No.17889/2019 ಹಾಜರುಪಡಿಸಿರುತ್ತೆೆವೆ ಎಂದು ಹೇಳುವರು."
18. I have perused Ex.P1 & 2. No doubt it is a Non-CTS cheque, but the question that arises before this court is that why the bank did not honour the cheque stating the ground that the Ex.P1 and 2 are Non-CTS cheque. Ex.P3 and 4 reflects that the cheques were dishonoured on a different ground that is as Account closed. Only for the reason that the Ex.P1 and 2 are non CTS cheque , the existence of legally recoverable debt cannot be ruled out. The accused could have adduced evidence to show that once the RBI took a decision to discontinue with the Non-CTS cheque and introduced CTS cheques, the accused has surrendered those Non CTS cheques before the concerned bank. This in fact could have probablised the case of the accused that there was 17 C.C.No.17889/2019 no occasion for her to issue Non CTS cheques. I do not find any efforts to have been made by the accused in this regard.
19. That apart, when the stands taken by the accused are not only inconsistent each other but also destructive, as a common prudent man it cannot be ruled out that accused might have given those cheques intentionally. Therefore, I do not find sufficient evidence tabled before me to probabalise the non-existence of legally recoverable debt based upon the defense that Ex.P1 and 2 are non CTC cheques.
20. In para -2 of the cross examination, the accused has stated that she closed the accounts pertaining to Ex.P1 and 2 way back in the year 18 C.C.No.17889/2019 2015. If she had closed the accounts pertaining to Ex.P1 and 2, then I do not understand what prevented the accused, as a precautionary measure, from mentioning to the bank that the Ex.P1 and P2 was either lost or given to the complainant to a different transaction. There seems to be a see-saw variance in the claims made by the accused. FINANCIAL CAPACITY:
21. One more defence taken by the accused against the complainant is her financial capacity to advance an amount of Rs.7,75,000/- as on July 2015. I have perused the cross examination of PW.1. Substantial part of cross examination is on the aspect of financial capacity of PW.1. The complainant's income as well as the specifics of the alleged loan of Rs. 7,75,000/-including the type of 19 C.C.No.17889/2019 payment method (cash or banking), note denomination, etc. are all put to test the credibility of PW1.
22. PW.1 in her cross examination has testified that she had the lease amount of Rs.5 lakhs ( which appears to be Rs.6 lakhs when the evidence is read as a whole) with her and also her savings amount. In order to substantiate that she had the lease amount of Rs.5 lakhs with her, she has examined her husband's sister i.e., Varamahalakshmi as PW2. Ex.P10 is also produced in this regard. I have perused the Ex.P10 carefully and also have perused the evidence of PW.2.
23. Ex.P10 reflects that there was a lease agreement between PW.2 and one Gopalakrishna 20 C.C.No.17889/2019 Lingappa Shet. The lease amount was for Rs. 6,25,000/-. During the course of the cross- examination, the only query regarding Ex. P10 is that each page lacks the lessee's signature. I have perused the Ex.P10 carefully. The lessee has affixed his signature on the last page of the deed. The front page of Ex.P10 reflects the name of PW.2 as well as the lessee, Gopalakrishna Lingappa Shet as the parties to the deed. I do not find any merits in the objections raised by the accused and there are no reasons to disbelieve Ex.P 10. No dent can be found in the cross examination of PW2. It appears that PW.2 is unmarried and she is residing with PW.1. Therefore so far as the amount of Rs.6 lakhs as mentioned in para-14 of the cross examination of PW.1 stands substantiated.
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C.C.No.17889/2019
24. The PW.1 states that Rs.1,75,000/- was arranged from her savings. To show her savings she has produced the pass books of her husband, herself and also PW.2. When I total their bank accounts as of July 2015, I find that there was enough money. No questions are put on the bank statements. Therefore I do not find sufficient material to probablise that the complainant had no financial capacity as on July 2015.
25. Apart from the defence as stated above, questions are put to PW.1 that the accused is a Government Employee and therefore she could have availed loan from her department. This again holds no water. From the very fact of she being a government employee can not probablise the non existence of debt.
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26. The accused has produced Ex.D8 passbook to show that she has paid Rs.1 lakh to the complainant. In the light of the Ex.D8(a) being marked by the accused, I have perused the entire evidence of DW1. There is no explanation by the accused as to for what the payment of Rs.1 lakh to the complainant is made.
27. During the course of the arguments, the counsel for the accused has stressed upon the point that as per Ex.D8(a), on 27.11.2007 a cheque was encashed. The cheque bears the Number 339500. This cheque was in favour of the complainant. Ex.P2 bears the Number 337425. It is the argument of counsel for the accused that when the Ex.P2 and Ex.D8(a) are read with in juxta position to each 23 C.C.No.17889/2019 other, it is clear that Ex.P2 was a cheque being in transaction during 2007. Therefore, the chances of Ex.P2 being handed over to the complainant in the year 2018 is less probable. Only for the fact that the cheque numbers in Ex.D8(a) and Ex.P2 are closer, the probability of Ex.P2 being handed over to the complainant as stated in the complaint can not be ruled out.
28. When all the above evidence is considered as a whole in the light of the above reported judgment, on the hilt of preponderance of probablities, I find from the specs of a common prudent man that the defence theory is improbable, unacceptable. The legally recoverable debt stands probabilised.Hence, I answer the point No.1 in the AFFIRMATIVE.
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29. Point No.2: The Cheques are dated 15.03.2018 and 17.03.2028. Ex.P3 and 4 shows that Ex.P1 and 2 returned on 17.04.2018 and were dishonoured for Account being closed. A legal notice was issued within the statutory period on 03.05.2018. The complaint is presented on 22.06.2018. The complaint is in time and the complainant has complied with all the requirements of the section 138 of the Negotiable Instruments Act.
30. On the basis of the entire materials on record, I am of the opinion that the accused has committed an offence under section 138 of the Negotiable Instruments Act. Accordingly I answer the POINT NO.2 In The Affirmative. 25
C.C.No.17889/2019
19. Point No.3: For the foregoing reasons and in view of the above findings, I pass the following:
ORDER The accused is found guilty. In Exercise of the Powers vested under section 255(2) of Cr.P.C., the accused is convicted for the offence punishable under section 138 of N.I.Act.
The accused is sentenced to pay fine amount of Rs.8,80,000/- (Eight Lakh Eighty Thousand Only ) In default of payment of fine, the accused shall undergo SI for six months. In Exercise of the powers vested under Sec.357(1)(b) of Cr.P.C., out of the fine amount, the complainant is entitled for Rs.8,75,000/- (Eight Lakh Seventy 26 C.C.No.17889/2019 Five Thousand Only ) towards compensation.
In Exercise of the powers vested under Sec.357(1) (a) of Cr.P.C., the remaining fine amount of Rs.5,000/- (Rupees Five Thousand only) is to be remitted to the state.
The personal bond executed by the accused shall stand cancelled and the cash security deposited by the accused shall be refunded to the accused after the appeal period is over. A copy of the above judgment shall be supplied to the accused free of cost. (Dictated to stenographer, transcribed by her, the transcript corrected by me and then pronounced in the open court on this the 07th day of August, 2024) (Smt. Namrata Rao K.S) XV ACJM, Bengaluru.27
C.C.No.17889/2019 ANNEXURE LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
PW.1 : Smt. Saroja. C.V PW.2 : Smt. Varamahalakshmi
LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P1 & 2 : 2 Cheques Ex.P1(a) & 2(a): Signatgures of the accused Ex.P3 & 4 : 2 Bank Endorsements Ex.P5 : DP Note and Consideration receipt Ex.P6 : Office copy of legal notice Ex.P7 : Postal receipt Ex.P8 : Postal acknowledgment Ex.P9 : Reply notice Ex.P10 : Lease agreement Ex.P11 : C/c of order in CC.No.14760/2018 28 C.C.No.17889/2019 Ex.P12 to 15 : 4 bank pass books LIST OF WITNESSES EXAMINED FOR THE ACCUSED:-
DW.1 : Smt. Gopamma LIST OF DOCUMENTS MARKED FOR THE ACCUSED:-
Ex. D1 to 7 : Gas receipts Ex.D8 : Pass book (Smt. Namrata Rao K.S) XV ACJM, Bengaluru.29
C.C.No.17889/2019 07.08.2024 (Judgment pronounced in the open court) ORDER The accused is found guilty. In Exercise of the Powers vested under section 255(2) of Cr.P.C., the accused is convicted for the offence punishable under section 138 of N.I.Act. 30
C.C.No.17889/2019 The accused is sentenced to pay fine amount of Rs.8,80,000/- (Eight Lakh Eighty Thousand Only ) In default of payment of fine, the accused shall undergo SI for six months.
In Exercise of the powers vested under Sec.357(1)(b) of Cr.P.C., out of the fine amount, the complainant is entitled for Rs.8,75,000/- (Eight Lakh Seventy Five Thousand Only ) towards compensation.
In Exercise of the powers vested under Sec.357(1) (a) of Cr.P.C., the remaining fine amount of Rs.5,000/- (Rupees Five Thousand only) is to be remitted to the state.
The personal bond executed by the accused shall stand cancelled and the cash security deposited by the accused shall be refunded to the accused after the appeal period is over. 31
C.C.No.17889/2019 A copy of the above judgment shall be supplied to the accused free of cost.
(Vide separate judgment) XV ACJM, Bengaluru.