Bangalore District Court
Sri.E.V.Rajesh vs Smt. Mehak Chawla @ Rinku Chawla on 14 September, 2021
IN THE COURT OF XX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU CITY
PRESENT: BHOLA PANDIT,
B.Com.,LL.M.,
XX ADDL. C.M.M.
Bengaluru.
Dated this the 14th day of September 2021
C.C.No.4812/2019
Complainant : Sri.E.V.Rajesh,
Aged about 45 years,
S/o E.V.Subbaiah,
R/at No.19, Market Road,
Basavanagudi,
Bengaluru- 560 004.
{ By Sri.M.G.Suresh Holla- Advocate }
Vs.
Accused : Smt. Mehak Chawla @ Rinku Chawla,
Prop:Mehak Chawla,
W/o Vikas Chawla,
At No.202, " Shanthinikethan",
No.6, Andree Road,
Shanthinagar,
Bengaluru- 560 027.
And also at:
Smt. Mehak Chawla @ Rinku Chawla,
Prop:Mehak Chawla,
W/o Vikas Chawla,
At No.15 & 16, Bhagwani Bhavan,
2 C.C.4812/2019
Nanjappa Road, Shanthinagar,
Bengaluru- 560 027.
And also at:
Smt. Mehak Chawla @ Rinku Chawla,
Prop:Mehak Chawla,
W/o Vikas Chawla,
At BF2, Sophias Choice, No.7/2,
St.Marks Road,
Bengaluru- 560 001.
{ By Sri.Prasad Subbanna - Advocate }
Offence complied of : U/S. 138 of N.I. Act.,
Plea of accused : Pleaded not guilty
Final Order : Accused is Convicted
Date of Order : 14-09-2021
JUDGMENT
The present complaint is filed under section 200 of code of criminal procedure for the dishonour of the alleged cheques at Ex.P.1 to 8 punishable under section 138 of the 3 C.C.4812/2019 Negotiable Instruments Act ( in short referred as "N.I. Act") against the accused.
02. The briefly stated facts of the complaint summarized as under;
The accused is a proprietor of the Mehak Chawla and she knows the complainant . On 26.09.2018, the accused borrowed a sum of Rs.8,90,000/- from the complainant to meet her financial commitments. The complainant has advanced the said loan to the accused through RTGS No.YESBR52018092657987882 from his YES bank, Basavanagudi Branch, Bengaluru. The accused has agreed to repay the above said loan amount with interest at the rate of 2% per month and has executed on demand promissory note in favour of the complainant. It is stated that, towards the part payment of the said loan amount, the accused has issued a cheque bearing No.031972 dated 26.10.2018 for Rs.1,00,000/-, drawn on ICICI Bank, Jayanagar Branch, Bengaluru and the same cheque was 4 C.C.4812/2019 presented and it was dishonored. But, later on, the accused has paid the said amount of Rs.1,00,000/- on 30.10.2018 through the NEFT. The accused has issued another cheque bearing No.031972 for Rs.1,00,000/-, but it was not encashed due to its dishonored. Immediately, when the complainant demanded for repayment of entire loan amount, the accused has issued following eight cheques drawn on ICICI bank, Jayanagar Branch, Bengaluru, in favour of the complainant.
Sl.No. Cheque number Dated Amount
01. 031973 29.11.2018 Rs.1,00,000/-
02. 031974 29.11.2018 Rs.1,00,000/-
03. 031975 30.11.2018 Rs.1,00,000/-
04. 031976 30.11.2018 Rs.1,00,000/-
05. 031977 01.12.2018 Rs.1,00,000/-
06. 031978 01.12.2018 Rs.1,00,000/-
07. 031979 03.12.2018 Rs.1,00,000/-
08 031980 03.12.2018 Rs.1,00,000/-
TOTAL Rs.8,00,000/-
When the complainant has presented the above said cheques for encashment with his YES bank on 03.12.2018, 5 C.C.4812/2019 surprisingly he received memo that, those cheques are returned unpaid due to "Funds Insufficient" on 04.12.2018. Therefore, on 19.12.2018, demand notices was issued to the all the addresses of the accused. But, only the notice issued to the first address was duly served to the accused on 22.12.2018 and the accused has given untenable reply instead of making payment of the cheques amount. Thus, it is sought to convict the accused to meet the ends of justice.
03. On presentation of the complaint and after verification of the averments of the complaint as well as the annexed documents, this court took the cognizance for the offence punishable under section 138 of NI Act. As per the verdicts of the Hon'ble Apex court in the case of Indian Bank Association and others V/s Union of India and others, the sworn statement of the complainant has been recorded by way of examination-in-chief as PW.1 and got marked in all twenty four documents at Ex.P.1 to 24 and also got 6 C.C.4812/2019 marked two documents at Ex.P.25 & 26 through DW.1. After scrutinizing the oral and documentary evidence of the complainant prima-facie case is made out for the trial. Accordingly, by registering criminal case in Register No. III, summons has been issued against the accused.
04. In the pursuance of the summons, the accused has appeared before the court through his counsel and filed bail application under section 436 of Code of Criminal Procedure, the accused has been enlarged on bail. On filing application under section 145(2) of NI Act, accusation has been recorded and explained to the accused, he pleaded not guilty and claims to hold the trial. Thereafter, the complainant has been cross examined by the counsel of the accused. After closure of trial from the complainant's side, the statement under section 313 of Code of Criminal Procedure has been recorded and explained to the accused about the incriminating material found in the trial of the case of the complainant. The accused has denied the same 7 C.C.4812/2019 in toto and claims to lead defense evidence. To disprove the case of the complainant and also to establish her defense before the court, the accused entered in the witness box and adduced her ocular evidence as DW.1 and have not got marked any documents on her behalf.
05. On closure of the trial, the oral arguments advanced by the Learned counsels appearing for the respective parties. The Learned counsel for the defense counsel has also filed written argument.
06. The following points that arise for my consideration are as under;
POINTS
1. Does the complainant proves beyond reasonable doubts that, the accused has issued following eight cheques Sl. Cheque Dated Amount No. number
01. 031973 29.11.2018 Rs.1,00,000/-
02. 031974 29.11.2018 Rs.1,00,000/-
8 C.C.4812/2019
03. 031975 30.11.2018 Rs.1,00,000/-
04. 031976 30.11.2018 Rs.1,00,000/-
05. 031977 01.12.2018 Rs.1,00,000/-
06. 031978 01.12.2018 Rs.1,00,000/-
07. 031979 03.12.2018 Rs.1,00,000/-
08 031980 03.12.2018 Rs.1,00,000/-
TOTAL Rs.8,00,000/-
towards the discharge of her lawful liability of the complainant and when the said cheques were presented for encashment, they were returned unpaid due to "Funds Insufficient" in the account of the drawer as per banker's memo and inspite of issuance of demand notice, the accused has failed to pay the cheques amount, thereby has committed the offence punishable under section 138 of NI Act?
2. What Order or sentence ?
07. My findings to the above points is as follows;
1. Point No.1: In the Affirmative
2. Point No.2: As per final order for the following;
9 C.C.4812/2019REASONS
08. POINT No.1: It is the case of the complainant that, In order to discharge the legally enforceable debt, the accused has issued the cheques at Ex.P.1 to 8 and when the said cheques were presented for encashment with the complainant's banker, they were returned unpaid with an endorsements "Funds Insufficient". Thereafter, inspite of issuance of demand notice , the accused has failed to make the payment of cheques amount and has given untenable reply.
09. To establish his case before the court, the complainant's sworn statement has been recorded and as per the verdicts of the Hon'ble Apex court in the case of Indian Bank Association and others V/s Union of India and others, the sworn statement of the complainant has been recorded by way of examination-in-chief as PW.1. PW.1 has replicated the averments of the complaint in the 10 C.C.4812/2019 affidavit evidence. PW.1 substantially cross examined by the learned defense counsel. The complainant has placed before the court the alleged cheques stated to have been issued by the accused , which are marked at Ex.P.1 to 8 and the signatures are also marked as Ex.P.1(a) to Ex.P.8(a). On bare reading of these cheques, they reveals that, these cheques at Ex.P.1 to 8 have been issued in the name of one E.V.RAJESH HUF for Rs.1,00,000/- each having dated 29.11.2018, 30.11.2018, 01.12.2018 and 03.12.2018. These cheques were issued by the proprietor by name Rinku Chawla. Ex.P.9 to 16 are the bank endorsements, wherein all the cheques at Ex.P.1 to 8 have been returned unpaid due to "Funds Insufficient" in the account of the drawer of the said cheques, Ex.P.17 is the demand notice issued to the accused, wherein the complaint averments has been re-iterated, Ex.P.18 to 20 are the postal receipts, Ex.P.21 and 22 are the postal envelopes, Ex.P.23 is the reply notice , wherein the accused has denied the averments in the complaint and put forth her defense 11 C.C.4812/2019 stating that, she had money transaction with one Mr. Chugh and she had issued 10 cheques to Mr.Chugh as a security documents with a request not to give those cheques to third party and by misusing those cheques, the present complaint has been lodged. Ex.P.24 is the on demand promissory note, Ex.P.24(a) & (b) are the signature s of accused, Ex.P.25 and 26 are the bank account statements of the complainant, which are marked on confrontation with DW.1.
10. In support of her defense, the accused herself entered in the witness box and led her oral evidence as DW.1. She stated that, she had not borrowed loan from the complainant. She availed loan from one Vikram Chugh and the alleged cheques were given to Mr. Vikram Chugh as security with a request to draw Rs.1,00,000/- per month by presenting those cheques. She further stated that, without mentioning date she has issued those eight cheques to Mr.Vikram Chugh and also not mentioned the name of the 12 C.C.4812/2019 payee in those cheques. She had issued those cheques to Mr.Vikram Chugh only after he transferring money to her account through RTGS. She also executed on demand promissory note to Mr.Vikram Chugh. She stated that, false complaint is lodged against her. Accordingly, she has sought to dismiss the complaint. The Learned counsel for the accused has cross examined DW.1 at length.
11. The Learned counsel for the complainant argued that, the issuance of cheques at Ex.P.1 to 8 and the signatures on those cheques is undisputed and also the signature on the on demand promissory note not in dispute. Therefore, he has sought raise statutory presumptions under section 118 and 139 of NI Act in favour of the complainant. He further argued that, the accused not examined the said Mr.Vikram Chugh in support of her defense. Therefore, her oral testimony is not having probative value to rebut the presumptions. During his further argument, he contends that, the payee can fill up the cheque and present for the 13 C.C.4812/2019 same as per section 20 of NI Act. Hence, he has sought to convict the accused as sought for.
12. Per contra, the Learned counsel for the defense argued that, the writings and the amount in words on Ex.P.1 to 8 which are different hand writings. The hand writings on Ex.P.1 to 8 and on Ex.P.24 are different. So, this aspect raise doubt in the case of the complainant. He further argued that, there is a delay in presentation of cheques to the bank and for which no explanation is offered. He further pointed out towards last two lines of page No.3 of cross examination of DW.1 coupled with the documents at Ex.P.26. But, the learned defense counsel further contends that, about defense taken in the reply notice, nothing is mentioned in the complaint, just for wrongful gain, the present complaint is lodged. Therefore, it is sought to dismiss the complaint and acquit the accused.
14 C.C.4812/2019
13. ' The cheque is a bill of exchange and it is Negotiable Instrument as per chapter-II of NI Act. The cheque is a bill of exchange drawn on specified banker and not expressed to be payable, otherwise, then on demand'.
14. In the instant case, upon the considering the averments of the complaint , the reply notice ate Ex.P.23, the evidence of PW.1 and also the evidence of DW.1, the issuance of cheques at Ex.P.1 to 8 and the signatures therein, is not disputed and this fact is admitted by the DW.1 in her cross examination. Therefore, as per the verdict of the Hon'ble Apex court reported in, 2010(11) SCC 441, in the case of Rangappa Vs. Mohana, the Hon'ble Apex Court, it is held that;
" Once the cheque relates to the account of the accused and he accepts the same and also admits his signature on the cheque, then the initial presumption under section 139 of NI Act as well as under section 118 of NI Act has to be raised in favour of the complainant. It is a mandatory presumption. But the accused is entitle to rebut the same on preponderance of probabilities."15 C.C.4812/2019
Once the issuance of the cheque and signature therein, then admitted it is a mandatory on the court to draw the presumptions in favour of the complainant that, the said cheques have been issued by the accused towards the discharge of her lawful debt and that the complainant is the due holder of those cheques. Now, the burden is on the accused to rebut the statutory presumptions by bringing on record with cogent and probable evidence. It is well settled rule that, in order to rebut the said presumption under section 139 of NI Act. The accused can very much gather the material evidence from the complainant itself or he can produce those evidence from his side independently. In the reply notice at Ex.P.23 and the evidence of accused as DW.1, it is her specific defense that, she borrowed Rs.10,00,000/- loan from one Mr. Chugh and for the discharge of the said loan amount, she has issued 10 cheques as a security documents to the said Mr.Chugh and out of those 10 cheques, the present cheques 16 C.C.4812/2019 at Ex.P.1 to 8 are misutilized and filed the present complaint . On careful perusal of the reply notice at Ex.P.23, particularly in para No.2 to 4, no where she has mentioned that, when she has availed loan from Mr.Vikram Chugh and even in her oral evidence before the court, she has not mentioned the date, month and year of her obtaining loan from Mr.Chugh.
15. On the contrary, the document at Ex.P.25, the bank account statement has been got marked during cross examination of DW.1 and she has admitted clearly about the Ex.P.25 stating that, on 26.09.2018, the amount of Rs.8,90,000/- was made as RTGS through this account at Ex.P.25 to her account. The account number shown in Ex.P.25 is same account number, which is mentioned in the complaint as account number 092490100000173 and the same is standing in the name of the complainant E.V.Rajesh HUF. Even DW.1 has admitted in her cross examination on page No.4 that, she has obtained amount 17 C.C.4812/2019 from the complainant, but further stated that, she do not know the complainant. By the evidence of PW.1 coupled with the documents at Ex.P.25, it can be safely held that, the accused borrowed hand loan Rs.8,90,000/- from the complainant through RTGS. On the other hand, except the contention of learned defense counsel, other than the oral evidence of DW.1 neither the bank statement of Vikram Chugh is produced nor the said Vikram Chugh has been examined before the court. Even the accused has not produced her bank account statement to substantiate her contention that, she has received Rs.8,90,000/- from the account holder other than the account of the complainant. That apart, DW.1 is also admitted the document i.e., bank account statement of the complainant at Ex.P.26 and as per this document, on 30.10.2018 accused has transferred Rs.1,00,000/- through NEFT to the account of E.V.Rajesh HUF, who is none other than the complainant. If the accused not availed any amount from the complainant, then why she has transferred Rs.1,00,000/- to the account 18 C.C.4812/2019 of the complainant as per Ex.P.26 remains a question, which is not at all neither answered nor explained by the accused. On the other hand, the document produced at Ex.P.26 strengthen the case of the complainant with regard to part payment of Rs.1,00,000/- by the accused as contended in para No.3 of the complaint. Therefore, the oral testimony of DW.1 and her defense under Ex.P.23 do not appears to be probable evidence to rebut the presumptions under section 139 of NI Act. Therefore, the contention of the learned defense counsel as narrated above is un- tenable. In the recent judgment reported in, 2021(1) KCCR 542, in the case of K.Kupparaj Vs. J.Thrilokamurthy, in Crl.Rev. Petition No. 606/2020, wherein, the Hon'ble High Court of Karnataka pleased to held as under;
" Accused not rebutting presumption attached to cheque under section 139 of NI Act. - plea that the cheque in question was issued to some other person- not proved - nothing to show that cheque in question was misused- accused only to escape from 19 C.C.4812/2019 the liability taking of lame excuses- conviction justified".
The defense counsel also argued that, there is no possibility of issuance of cheques by putting dates, date after another as happened in the present case and that leads a probable material to rebut the presumption. It is true that, two cheques bears i.e., Ex.P.1 & 2 the same date as 21.11.2018, similarly, Ex.P.3 & 4 bears dated 30.11.2018 and Ex.P.5 & 6 bears dated 01.12.2018 and Ex.P.7 & 8 bears dated 03.12.2018. Neither the Negotiable Instrument Act imposes any restrictions nor there was an agreement that, such dates shall not be mentioned. Further, even otherwise if the said dates are got filled up by the complainant himself, nothing wrong in it and it is permissible under section 20 of NI Act. Therefore, by mere findings of these dates one after another on these cheques at Ex.P.1 to 8 do not arise any doubt to consider the same as a probable evidence in support of the defense of the accused. Hence, I do not find any force in the contention of 20 C.C.4812/2019 the learned defense counsel. Therefore, by the oral testimony of PW.1 coupled with the cheques at Ex.P.1 to 8, I am of the considered opinion that, the accused has issued these cheques to the complainant towards discharge of her lawful debt and inspite of issuance of demand notice at Ex.P.17, she has failed to make the payment of cheques amount and instead has took the untenable defense under Ex.P.23. On the contrary, the reply notice at Ex.P.23 and the oral evidence of DW.1 are not sufficient material to hold that, thee is a probable evidence to rebut the statutory presumptions under section 118 and 139 of NI Act.. Therefore, I answered point No.1 in the affirmative.
16. POINT NO.2: In view of the reasons stated and discussed above, the complainant has proved the guilt of the accused punishable under section 138 of N.I. Act It is worth to note that, the offence is of the nature of civil wrong. Hence, it is proper to award sentence of fine, 21 C.C.4812/2019 instead of awarding sentence of imprisonment. Accordingly, this court proceed to pass the following;
ORDER
Acting under section 255 (2) of
Criminal Procedure Code, accused is
hereby convicted for the offence
punishable under section 138 of
Negotiable Instrument Act and
sentenced to pay fine of Rs.8,20,000/-
(Rupees Eight Lakhs Twenty
Thousand only). In default, he shall
undergo simple imprisonment for 3
(Three) months.
Acting under section 357(1) of
code of criminal procedure, it is
ordered that an amount of
Rs.8,10,000/- ( Rupees Eight Lakhs
Ten Thousand only), there from
22 C.C.4812/2019
shall be paid to the complainant as a
compensation, remaining fine amount of Rs.10,000/- (Rupees Ten Thousand only) is defrayed to the state for the expenses incurred in the prosecution.
The bail bonds of accused stands canceled subject to appeal period.
Supply free copy of judgment to the accused.
{Dictated to the stenographer, transcribed and computerized by her, revised corrected and then pronounced in the open court on this 14th day of September 2021}.
(BHOLA PANDIT) XX ACMM, Bengaluru.
23 C.C.4812/2019ANNEXURE List of witnesses examined on behalf of complainant:
P.W.1 E.V.Rajesh List of documents produced on behalf of complainant:
Ex.P.1 to 8 Cheques
Ex.P. 1(a) to 8(a) Signatures of the accused
Ex.P. 9 to 16 Bank endorsements
Ex.P. 17 Copy of the legal notice
Ex.P. 18 to 20 Postal receipts
Ex.P. 21 & 22 Unserved postal covers
Ex.P.23 Reply notice
Ex.P.24 On demand promissory note
Ex.P.24(a) & (b) Signatures of accused on on
demand promissory note
Ex.P.25 & 26 Bank account statements of
the complainant,
24 C.C.4812/2019
List of witnesses examined on behalf of accused:
D.W.1 Mehak Chawla @ Rinku Chawla List of documents produced on behalf of accused:
-Nil-
XX A.C.M.M., Bengaluru.