Bangalore District Court
Smt. Swarnalatha vs Mrs Lidiya Rani.K on 4 April, 2024
KABC030094632020
IN THE COURT OF THE XIX ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE AT BENGALURU CITY.
Dated this the 4th day of April 2024
PRESENT:SRI.FAROOQ ZARE
B.A.(Law)LL.B.L.L.M.
XIX ADDL.C.M.M., BENGALURU.
Case No. :- C.C.No.2570 of 2020
Complainant Smt. Swarnalatha,
W/o. Col. S.K. Shah
Aged about 50 years,
Vannarpet Officer's Colony,
Old Race Course Road,
Austin Town,
BENGALURU 560047.
(By Sri.J.P Advocate.)
-V/s-
2 C.C.No.2570/2020
Accused :- Mrs. Lidiya Rani. K
W/o Kathiravan
Aged about 55 years,
Residing at No.24, 6th Cross,
HAL II Stage,
Kodihalli,
BENGALURU
(By Sri.KSP Advocate.)
Offence complained of :- Under Section 138 of N.I.Act.
Plea of accused :- Pleaded not guilty.
Opinion of the Judge :- Accused found not guilty.
Date of order :- 4th April 2024
J UD GME N T
The complainant has filed this complaint under
Section 200 of Cr.P.C against the accused for the
offence punishable under Section 138 of N.I.Act.
1. The brief facts of the complaint are that;
The complainant is owner of residential premises
situated at No.24, 6th Cross, HAL II Stage, Kodihall,
3 C.C.No.2570/2020
Bengaluru and accused is residing as a tenant along
with her husband Kathiravan. The accused is in arrears
of rent. When the complainant demanded the accused
and her husband arrears of rent, the accused issued
cheque bearing No.374129 dated 02/11/2019 for a sum
of Rs.90,000/- drawn on Corporation Bank, Jeevan
Beema Nagar Branch, in favour of complainant.
2. When the complainant presented the cheque
for encashment through her banker ICICI Bank,
Bommanahalli Branch, Bengaluru which was returned
unpaid with an endorsement "DRAWERS SIGNATURE
DIFFERS" on 17/12/2019. Thereafter, the complainant
got demand notice issued on 14/01/2020 through his
counsel to the accused by RPAD to the accused calling
upon her to repay the cheque amount within 15 days
from the date of service of notice, which was served
4 C.C.No.2570/2020
upon the accused, but the accused instead of complying
the notice sent evasive reply.
3. On presentation of the complaint, the
cognizance was taken of the offence punishable under
Section 138 of N.I.Act and registered it as
P.C.R.No.1551 of 2020. The sworn statement of the
complainant was recorded. Since there were sufficient
materials to proceed against the accused, it was
registered as Criminal case in register No.III and the
process was issued to the accused.
4. On receipt of the summons, the accused
appeared before the court through her counsel and
secured bail. She was furnished with the prosecution
papers. The substance of the accusation was read over
5 C.C.No.2570/2020
and explained to her. She pleaded not guilty and
claimed to be tried.
5. The complainant has herself got examined as
PW1 and got marked documents at Ex.P1 to Ex.P6.
6. The statement of the accused under Section
313 of Cr.P.C was recorded. She denied the
incriminating evidence appearing against her. The
defence side evidence is taken as nil as accused did not
adduce defence evidence despite availing sufficient
opportunity.
7. Heard the arguments of both the sides.
8. The points that arise for my consideration
are as under;
6 C.C.No.2570/2020
1. Whether the complainant proves that the
accused has issued cheque at Ex.P1 for
Rs.90,000/- in her favour towards
discharge of her liability.?
2. Whether the complainant further proves
that the said cheque was dishonoured as
"DRAWERS SIGNATURE DIFFERS" when it
was presented for encashment.?
3. Whether the complainant further proves
that she has complied with the
mandatory provisions of Section 138 of
N.I.Act.?
4. What order ?
9. My findings to the above points for
consideration are as under:
Point No.1 :- In the Negative
Point No.2 :- In the Affirmative.
Point No.3 :- In the Negative.
Point No.4 :- As per final Order for the
following;
7 C.C.No.2570/2020
R EAS O N S
10. Point No.1:- As regards legally enforceable
debt or liability the Hon'ble Supreme Court in the case
of Rangapa vs Sri.Mohan reported in (2010) 11 SCC
441 has held that "The presumption mandated by
Section 139 of the Act includes a presumption that
there exists a legally enforceable debt or liability. This is
of course in the nature of a rebuttable presumption and
its open to the accused to raise a defence wherein the
existence of a legally enforceable debt or liability can be
contested. However, herein, there can be no doubt that
there is an initial presumption which favours the
complainant. When an accused has to rebut the
presumption under Section 139, the standard of proofs
for doing so is that of preponderance probabilities.
Therefore, when the accused is able to raise a probable
defence which creates doubt about the existence of a
8 C.C.No.2570/2020
legally enforceable debt or liability, the presumption can
fail. The accused can rely on the materials submitted by
the complainant in order to raise such a defence and it
is conceivable that in some cases the accused may not
need to adduce evidence of his/her own".
11. If the facts and circumstances of the case are
considered in the light of above said principle of law it is
clear that the accused has not disputed during the trial
that the cheque in question is drawn on her bank
account and it bears her signature. Therefore, the
statutory presumptions arise under Sections 118(a) and
139 of N.I. Act in favour of the complainant that the
cheque in question is issued for consideration in
discharge of debt or liability. The burden of rebutting
the said presumptions by probable defence is on the
accused.
9 C.C.No.2570/2020
12. PW1 in her examination-in-chief has reiterated
the averments of the complaint and has relied upon
documents at Ex.P1 to Ex.P6.
13. The accused has not let in defence evidence.
However, she sent reply notice to the demand notice
caused by the complainant. According to the
complainant, the accused was a tenant under her and
accused was residing in the premises along with her
husband and towards arrears of rent, she issued
cheque in question for Rs.90,000/-. However in the
reply notice in terms of Ex.P6 the accused has
contended that her husband was a tenant under the
complainant and was paying the rent periodically by
his bank instruments and through his advocate. It is
to be noted here that, no document has been placed on
record by the accused evidencing that rent was paid
10 C.C.No.2570/2020
periodically by her husband through bank instruments.
Of course the complainant in her case states that the
accused was tenant under her, but in the cross
examination she has deposed that, the husband of the
accused namely Kathiravan was a tenant under her. It
is also case of the complainant that, towards payment
of arrears of rent, the accused being a tenant issued
cheque in question. However, in the cross examination
PW1 has deposed that, as her husband was not having
cash in hand, her husband issued cheque pertains to
accused in her favour. PW1 has also stated in her cross
examination that, she has stated in demand notice at
Ex.P3 that, Kathiravan when issued cheque to her.
The learned counsel for the accused during the course
of arguments has pointed out this oral statement given
by PW1. Perusal of demand notice at Ex.P3 indicates
that, the complainant has stated that the accused has
issued cheque in question. It is not stated in Ex.P3
11 C.C.No.2570/2020
that the husband of the accused namely Kathiravan
issued cheque to complainant.
14. In the cross examination of PW1, when a
photo copy of rental agreement was confronted
suggesting that, the name of the accused does not find
a place, PW1 has admitted as true. Both the parties
have not produced rental agreement before the court.
As PW1 herself admits that the name of the accused
does not finds a place in the rental agreement it can be
said that the accused was not the tenant under the
complainant as contended by the accused.
15. It is to be noted that, both the parties have not
disclosed that what was the rent fixed under the rental
agreement. Even the complainant has also not stated
in her case for how many months the accused was due
to pay arrears of rent to her. As already stated above,
12 C.C.No.2570/2020
though accused in the reply notice at Ex.P6 contends
that rent was paid by her husband periodically to the
complainant, but no document has been placed on
record before the court.
16. The learned counsel for the complainant has
argued that, as the accused was due to pay arrears of
rent to the tune of Rs.90,000/-, she issued cheque in
question for Rs.90,000/- towards arrears of rent. The
complainant has produced cheque in question drawn
on Corporation Bank, Jeevan Beema Nagar Branch. In
the complaint and in the evidence affidavit, the
complainant has stated that, the accused has issued
cheque in question drawn on Corporation Bank, Jeevan
Beema Nagar Branch. In the reply notice at Ex.P6, the
accused specifically takes up a defence that, the
accused does not maintain any bank account with the
ICICI Bank Ltd., RPC Bengaluru 68 at any point of time.
13 C.C.No.2570/2020
In the notice of demand at Ex.P3, in para No.1 the
complainant has clearly stated that, the accused has
issued cheque for Rs.90,000/- drawn on ICICI Bank,
RPC Bengaluru 68. The learned counsel for the
accused during the course of arguments has
vehemently argued that though in the notice of demand
it is stated by the complainant that, the accused issued
cheque drawn on ICICI Bank, RPC Bengaluru 68, but
the accused has not at all maintained any bank
account in the said bank at any point of time and he
has drawn the attention of the court towards cross
examination of PW1 wherein PW1 has clearly admitted
that, in the reply notice at Ex.P6 it is stated that the
accused has not operated any account in ICICI Bank,
Bengaluru 68 at any point of time. The learned counsel
for the accused has argued that the demand notice as
issued by the complainant in terms of Ex.P3 is a
defective notice and in support of this argument he has
14 C.C.No.2570/2020
relied upon a decision in Crl.M.C. No. 2164/2022 and
Crl.M.A No. 9155/2022 in the case of Mahdoom Bawa
Bahrudeen Noorul V/s Kaveri Plastics, therein the
Hon'ble High Court of Delhi at New Delhi has
quashed the proceedings initiated for the offence
punishable U/sec. 138, 141 and 142 of of N.I. Act as
notice is defective. It is to be noted here that, as
already stated above, the accused has not disputed that
the cheque in question does not pertains to her bank
account. However, she has specifically contended that,
she has never maintained any bank account with ICICI
Bank RPC, Bengaluru 68. Ex.P1 the cheque in
question is drawn on Corporation Bank, Jeevan
Beema Nagar Branch and the description of this
cheque has also been stated by the complainant in the
complaint as well as in her evidence affidavit, but
pertinently the complainant has stated in the demand
notice at para No.3 that, the accused issued cheque for
15 C.C.No.2570/2020
Rs.90,000/- drawn on ICICI Bank, RPC Bengaluru.
Therefore, the case of the complainant as set up by her
is not clear with reference to notice of demand,
complaint and evidence affidavit as the description of
cheque in question is not one and the same. Therefore
as rightly pointed out by the learned counsel for the
accused it can be simply said that, the notice sent in
terms of Ex.P3 by the complainant is defective one and
as such her case fails. Accordingly point No.1 is
answered in the Negative.
17. Point No.2:- According to the complainant
the cheque in question at Ex.P1 was returned unpaid
with an endorsement as "DRAWERS SIGNATURE
DIFFERS" . The bank memo produced by the
complainant at Ex.P2 reveals that cheque was returned
unpaid for the reason "DRAWERS SIGNATURE
16 C.C.No.2570/2020
DIFFERS". The bank memo at Ex.P2 proves dishonour
of cheque for the reason "DRAWERS SIGNATURE
DIFFERS" by virtue of presumption raised under
Section 146 of N.I. Act and during the trial Ex.P2 went
uncontroverted. Hence, I answer point No.2 in the
Affirmative.
18. Point No.3:- The cheque in question at Ex.P1
was returned unpaid with bank endorsement on
17/12/2019 as per bank memo at Ex.P2. It is clear
from Ex.P3 the office copy of demand notice that, the
complainant caused demand notice on 14/01/2020
informing the accused about dishonour of the cheque
and making demand for repayment of amount covered
under the cheque in question. On perusal of Ex.P1 to
Ex.P3 it is evident that the complainant has presented
the cheque within its validity and it was returned
17 C.C.No.2570/2020
unpaid on 17/12/2019 as well as the complainant has
caused demand notice within one month from the date
of intimation of dishonour of the cheque.
19. The records disclose that after causing
demand notice, the accused has not repaid amount
covered under cheque Ex.P1 after expiry of fifteen days
statutory period from the date of service of notice, the
complaint is filed well within the period of limitation.
Since the notice of demand sent by the complainant in
terms of Ex.P3 is a defective notice, she has not
complied with all the essential ingredients of Sec.138 of
N.I. Act. Hence, point No.3 is answered in the
Negative.
20. Point No.4:- In view of my findings on the
above points, I proceed to pass the following;
18 C.C.No.2570/2020
ORDER
Accused is acquitted under Section 255(1) of Cr.P.C of the offence punishable under Section 138 of N.I.Act.
The bail bond of the accused and cash surety stands canceled.
(Directly dictated to the Stenographer on computer, typed by her, corrected by me and then pronounced in the Open Court on 4th April, 2024.) Digitally signed FAROOQ by FAROOQ ZARE ZARE Date: 2024.04.08 17:53:42 +0530 (FAROOQ ZARE) XIX ADDL.C.M.M., Bengaluru.
:: ANNEXURE ::
Witnesses examined on behalf of the Complainant :
PW1 :- SWARNALATHA Documents marked on behalf of the Complainant:
Ex.P1 :- Cheque.
Ex.P1(a) :- Signature of accused.
Ex.P2 :- Bank Endorsement.
19 C.C.No.2570/2020
Ex.P3 :- Office copy of the legal notice.
Ex.P4 :- Postal receipt.
Ex.P5 :- Postal acknowledgement
Ex.P6 :- Reply notice
Witnesses examined on behalf of the Accused:-
-Nil-
Documents marked on behalf of the Accused:-
-Nil-Digitally signed by FAROOQ ZARE
FAROOQ Date:
ZARE 2024.04.08
17:53:48
+0530
(FAROOQ ZARE)
XIX ADDL.C.M.M., Bengaluru.20 C.C.No.2570/2020
(Judgment pronounced in the open court vide separate order) O R DE R Accused is acquitted under Section 255(1) of Cr.P.C of the offence punishable under Section 138 of N.I.Act. The bail bond of the accused and cash surety stands canceled.
(FAROOQ ZARE) XIX A.C.M.M., Bengaluru.