Bangalore District Court
Sri. M. Narayanaswamy vs Smt. Varalakshmi on 20 December, 2018
1 C.C.NO.13648 OF 2017
IN THE COURT OF THE XII ADDL. CHIEF METROPOLITAN
MAGISTRATE, AT BENGALURU
Dated this the 20th Day of December 2018
Present: Sri. Rajkumar .S.Amminbhavi., B.Com., LLB (Spl)
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
C.C.No. 13648/2017
Complainant: Sri. M. Narayanaswamy
S/o. Muniswamy
Aged about 56 Years
R/at. No.7, Raghavendra
Badavane, Near JMM School
Chikkabanavara,
Bengaluru-560 090.
(By N.P.Kallesh Gowda. Adv)
- Vs -
Accused: Smt. Varalakshmi
@ Smt. Varalakshmamma
W/o. Sri. Lakshmaiah
Aged about 46 Years
R/at. No.76/P, Railway Quarters
Type No.1, Yeshwanthpura
Bengaluru-560 022.
(By. B.N.Anjan Kumar., Adv)
Offence complained of: U/s. 138 of the Negotiable
Instruments Act
Plea of the accused: Pleaded not guilty
Final Order: Accused is convicted
Date of order: 20.12.2018
******
2 C.C.NO.13648 OF 2017
JUDGMENT
This is a complaint under Sec.200 of Cr.PC filed by the complainant against the accused for the offence punishable under Sec.138 of the Negotiable Instruments Act.
2. The facts of the complaint in brief are that, the complainant and accused are known to each other as they are working in the Railway department at Yeshwanthpura and they are residing in Railway quarters at Yeshwanthpura, Bengaluru. On account of well acquainted with the each other, the accused has approached the complainant and requested for advancement of hand loan amount of Rs.2,00,000/- during the 1 st week of September 2015 for her domestic problem and accordingly, the complainant has consider the request made by the accused and on account of humanitarian ground, the complainant has advanced the loan amount of Rs.2,00,000/- to the accused on 05.09.2015 by way of cash and on that day, the accused has agreed and undertaken that, she would repay the said borrowed loan amount within a period of one year. After lapse of stipulated on repeated request and demand made by the complainant to the accused for repayment of the borrowed loan amount and at that time, the accused for discharge the loan in question had issued cheque bearing No.547722, dated:16.03.2017 for a sum of 3 C.C.NO.13648 OF 2017 Rs.2,00,000/- drawn on State Bank of India, SME Branch, Mahadevapura, Bengaluru in favour of the complainant and assured that, the said cheque would be honoured in its presentation and accordingly, as per the assurance made by the accused, the complainant has presented the said cheque for encashment through his banker i.e., State Bank of India, Yeshwanthpura Branch, Bengaluru, but it was returned with an endorsement that, "Funds Insufficient" and the complainant intimated the said fact to the accused, but the accused has not responded the same. Therefore, the complainant has got issued legal notice on 12.04.2017 to the accused through his counsel by RPAD calling upon her to repay the said borrowed loan amount within 15 days from the date of receipt of this legal notice and it was duly served upon the accused. Hence, the complainant had constrained to file a complaint against the accused for the offence punishable under Section 138 of N.I. Act., which is well within time and based on the records available on record cognizance has been taken and registered it PCR.
3. After recording of the sworn statement of the complainant and complaint is registered in criminal case register and after issuance of summons to the accused, pursuant to the summons the accused had appeared before this Court through her counsel and enlarged on 4 C.C.NO.13648 OF 2017 bail. The substance of accusation was recorded and read over to the accused in her vernacular. She pleaded not guilty. Hence, claims for trail.
4. In order to prove the case of the complainant, the complainant got himself examined as PW.1 & got 6 documents marked as Ex.P.1 to Ex.P6 and PW-1 has been fully cross-examined and the statement of accused under Section 313 of Cr.P.C., was recorded and she denied the incriminating statement against her and when the matter was posted for defence evidence and subsequently, inspite of giving sufficient opportunity, they fails to adduce her defence. Since the present complaint summary trail in nature and quasi criminal in nature and it is like recovery proceedings and as per the new amendment under Section 142(5) of N.I.Act., neither the accused nor her counsel, they have failed to file an application for adducing their defence evidence, inspite of giving sufficient opportunity and thereby, defence evidence is taken as no evidence and the matter was posted for arguments.
5. Heard arguments.
6. The following points arise for my determination;
1. Whether the complainant proves that the accused had issued Cheque bearing No.457722, dated:16.03.2017 for Rs.2,00,000/- drawn on State Bank of 5 C.C.NO.13648 OF 2017 India, Mahadevapura Branch, Bengaluru, for discharge of the amount and when the said cheque presented for encashment, it was dishonoured with an endorsement "Funds Insufficient" and after issuance of the legal notice she fails to repay the said amount and Thereby, the accused have committed offence punishable U/s. 138 N.I.Act?
2. What order ?
7. My answer to the above points are;
Point No.1 : In the Affirmative
Point No.2 : As per final order for the
following;
REASONS
8. POINT NO.1: On perusal of the evidence of PW-1 he has reiterated as per the averments made in the complaint and he has got marked 6 documents namely, cheque which is marked as Ex.P1, the signature of the accused therein which is marked as Ex.P1(a), bank endorsement which is marked as Ex.P2, the office copy of the legal notice which is marked as Ex.P3, postal receipt which is marked as Ex.P4, the postal acknowledgment which is marked as Ex.P5, certified copy of the legal notice which is marked as Ex.P6.
6 C.C.NO.13648 OF 20179. During the course of cross of PW-1, he has deposed that, he was studied up-to 7th standard in Tamil language, he know reading English Language, but he do not know writing the English Language. He deposed that, he had serving in Railway Department for the last 35 years and the accused is also serving in Railway Department as D Group employee and both are residing in the Railway quarters at Yeshwanthpura. He deposed that, he was advanced the loan in question to the accused in the month of September 2015 for her domestic purpose. He deposed that, he know know one Mohanbabu who is son-in-law of the accused, but his wife known to one Mohanbabu. He deposed that, there was no financial transaction took place himself and the accused prior to loan in question. He denied the suggestion that, there was monetary took place between himself and one Mohanbabu who is son-in-law of the accused. He denied the suggestion that, the accused has not at all borrowed the loan in question from him and she was not at all issued cheque in question for discharge the loan in question. He denied the suggestion that, there was quarrel took place between the accused and Mohanbabu and the said Mohanbabu had stolen the cheuqe in question from the accused and same has been given to him and at the instigation of the said Mohanbabu, he has filed the present complaint with an intention to get 7 C.C.NO.13648 OF 2017 wrong full gain.
10. When the matter was posted for defence evidence and subsequently, inspite of giving sufficient opportunity, the accused neither nor her counsel, they have failed to appear before this Court and the present complaint summary trail in nature and quasi criminal in nature and it is like recovery proceedings and as per the new amendment under Section 145(2) of N.I.Act., neither the accused nor her counsel, they have failed to file an application for adducing their defence evidence, inspite of giving sufficient opportunity and thereby, defence evidence is taken as no evidence and after heard the arguments and the matter was posted for judgment.
11. On perusal of the averments made in the complaint and also documents produced by the complainant is that, it is an admitted fact that, even after issuance of the legal notice by the complainant to the accused prior to filing of the said complaint, the accused has not gave any reply notice. Therefore, prior to filing of the said complaint the complainant had complied all the necessary ingredients under Section 138 of N.I.Act. Though the accused has appeared before this Court through her counsel and enlarged on bail, she pleaded not guilty and claim for trail and to substantiate the said defence, inspite of giving 8 C.C.NO.13648 OF 2017 sufficient opportunity she has failed to adduce her defence evidence. On perusal of the Ex.P1 there is no any ambiguity. Since the complainant has proved his case by adducing cogent and corroborative evidence and during the course of cross of PW-1 nothing has been elicited to defeat the claim of the complainant.
12. On the other than, the accused has taken specific defence during the course of cross of PW-1 that, she was not at all borrowed the loan in question from the complainant and she was not at all issued cheque in question for discharge the loan in question and she has taken further defence that, there was quarrel took place between herself and one Mohanababu who is none other than her son-in-law and the said Mohanababu has stolen the cheque in question and same has been misused and at the instigation of the said Mohanababu, the complainant has filed the present complaint with an intention to get wrong full gain. but to substantiate the same, she has not produced any documentary evidence and he has failed to examine the said Mohanababu except oral testimony. Therefore, an adverse inference is to be drawn that, she was borrowed the loan in question from the complainant and for discharge the loan in question, she has issued cheque in question.
9 C.C.NO.13648 OF 201713. Further, if really, she was not at all borrowed the loan in question from the complainant and she was not at all issued cheque in question for discharge the loan in question and she has taken further defence that, there was quarrel took place between herself and one Mohanababu who is none other than her son-in-law and the said Mohanababu has stolen the cheque in question and same has been misused and at the instigation of the said Mohanababu, he has filed the present complaint with an intention to get wrong full gain, but to substantiate the same, she ought to have gave stop payment instruction to her banker, she ought to have gave reply notice to the legal notice issued by the complaint, she ought to have adduce her defence evidence, she ought to have examine one Mohanababu, she ought to have challenged the cognizance taken by this Court, she ought to have lodged private or police complaint against the complainant. Therefore, non- performing the aforesaid legal proceedings that itself, it is very much fatal to the alleged defence set-up by the accused during the course of cross of PW-1. There is no dispute that, Ex.P1 cheque is belonging to her own bank account cheque and signature found on the Ex.P1(a) is her own signature. It can be presumed that, the accused has issued the Ex.P1 to the complainant knowing fully well without having sufficient funds in her bank account with an intention to defeat the claim of the complainant.
10 C.C.NO.13648 OF 201714. It is settled principle that, the drawer himself/herself would take abundant precaution prior to issuance of the signed blank cheque to any other persons. There is no hard and fast rule that, the drawer himself/herself wrote the contents of the cheque and no any ordinary prudent man will issue singed blank cheque to any other persons without having any monetary transaction and in the instant case, both are very well known to each other, serving in Railway Department and residing in Railway Quarters as neighboures at Yeshwanthpura Railway quarters. Therefore, it can be presumed that, the accused has issued cheque in question to the complainant without having sufficient funds. Further, the complainant has proved his case by adducing cogent and corroborative evidence under Section 138 of N.I.Act., On the other hand, the accused has failed to defend her case by adducing cogent and corroborative evidence to rebut as per under Section 139 of N.I.Act.,
15. It can be presumed that, no any ordinary prudent man will issue signed blank cheque to any other persons without having monetary transaction between themselves. As per the Section 73 of the Indian Evidence Act., this Court is having ample power with respect to compare the admitted signature and disputed signature. Therefore, on 11 C.C.NO.13648 OF 2017 perusal of the Ex.P1 therein signature of the accused Ex.P1(a) the accused had put her signature at the time of filing the vaklath and enlarged on bail and the accused had put his signature at the time of recording of his accusation, are one and the same. Hence, the probability of the preponderance is higher on the side of the complainant, rather than the accused.
16. Ordinarily offence under Section 138 of N.I.Act "mensrea" is not essential, under Section 138 of N.I.Act , is bring into operation rule of strict liability, whereas, "mensrea" is essential ingredients in criminal offences. Therefore, The complainant has proved his case against the accused, since offence under Section 138 of N.I.Act element of Mensrea has been excluded in general public interest to curb the instances of dishonouring of cheques and to lend the credibility to the commercial transaction. Therefore, in this case also the accused knowing fully she was borrowed the loan in question from the complainant and for discharge the loan in question she has issued the Ex.P1 to the complainant.
17. Looking to the conduct of the parties to the proceedings, the accused who being Central Government and she know the cause and consequences for issuance of signed blank cheque to any other persons without having monetary transaction under the process of law.
12 C.C.NO.13648 OF 201718. Hence, in the light of the above observation, the complainant has successfully proved that, the accused has committed offence punishable under Section 138 of N.I. Act with these reasons, I am the opinion that, the complainant successfully established before the Court, the accused has issued Ex.P1 to the complainant for the legally recoverably debt. Therefore, I answer the point No.1 in the affirmative.
19. Point No.2 :- In view of my findings on Point No.1 in the affirmative, I proceed to pas the following...
ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
The accused shall pay a fine of Rs.2,00,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for One month.
Further, ordered that, out of the said fine amount of Rs.1,98,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and remaining an amount of Rs.2,000/- shall be remitted to the state as fine.
The bail bond and surety bond of the accused stands canceled.
13 C.C.NO.13648 OF 2017Free copy issued to the accused.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified, corrected and then pronounced by me in the open Court on this the 20th day of December 2018).
(Rajkumar.S.Amminbhavi) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the complainant:
PW.1 M. Narayanaswamy List of documents exhibited on behalf of the complainant:
Ex.P.1 Cheque Ex.P.1(a) Signature of the accused Ex.P.2 Bank endorsement Ex.P.3 Office copy of the legal notice Ex.P.4 Postal receipt Ex.P.5 Postal acknowledgment Ex.P.6 Certified copy of the legal notice
List of witnesses examined on behalf of the accused :
NIL List of documents exhibited on behalf of the accused :
NIL XII Addl. Chief Metropolitan Magistrate, Bengaluru City.14 C.C.NO.13648 OF 2017
20.12.2018.
Complainant : NPK Accused : BNA Judgment.
(Vide separate judgment pronounced in the open Court) ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
The accused shall pay a fine of Rs.2,00,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for One month.
Further, ordered that, out of the said fine amount of Rs.1,98,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and remaining an amount of Rs.2,000/- shall be remitted to the state as fine.
The bail bond and surety bond of the accused stands canceled.
Free copy issued to the accused.
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
15 C.C.NO.13648 OF 2017 16 C.C.NO.13648 OF 2017Heard Inference 17 C.C.NO.13648 OF 2017