Bangalore District Court
Against The Accused For The Offence vs Failed To Pay The Cheque Amount And ... on 17 March, 2020
1 CC.25495/2017 (J)
IN THE COURT OF THE XV ADDL CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY.
Dated this the 17th day of March-2020
Present: Subhash.B.Hosakalle.
B.Com.,LL.B (Spl)
XV Addl.C.M.M., Bangalore.
Judgment U/s.355 of the Cr.P.C. 1973.
1.Sl.No.of the case CC.No.25495/2017
2.Name of the Complainant: Smt.Suhasini Umesh Sharma,
W/o.Mr.Umesh Sharma,
(Ret. Bank employ),
Aged about 64 years,
R/at No.16, Sriram Sadan,
1st Main, 3rd Cross,
Amarajyothi Housing Society,
Sanjaynagar,
Bangalore - 560 094.
3.Name of the accused: Smt.Priya P.
Aged about 39 years,
R/o.No.2, Vinayaka Residence,
3rd main road, AECS Layout,
Nagashettihalli, Sanjaynagara,
Bangalore- 560 094.
And also at:
Aishwarya Beauty Parlor
Proprietor,
6/B Rajahamsa Complex,
Amarjyothi Layout,
Anjaynagar Main Road,
Banglore - 560 094.
4.The offence complained of U/s.138 of Negotiable
: Instruments Act.
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5.Plea of the accused: Pleaded not guilty.
6.Final Order: Acting U/s.255(2) Cr.P.C.,
accused is Convicted.
7.Date of final Order 17th day of March-2020.
***
This complaint is filed U/Sec.200 of Cr.P.C., by the
complainant against the accused for the offence
punishable U/Sec.138 of the Negotiable Instruments Act,
1881.
The facts in brief is as under.
2. That the complainant and the accused are
known to each other from few years and accordingly in the
month of August 2016 the accused has approached the
complainant and sought hand loan of Rs.5 lakhs. In
response to the request of the accused in the month of
September 2016 complainant has given loan of Rs.5 lakhs
to the accused. As against the said loan amount the
complainant has paid Rs.2 lakhs to the accused by way of
three cheques bearing No.542120 for Rs.1 lakh dated
7.09.2016, cheque No.306017 for Rs.25,000/- dated
19.10.2016 and cheque No.306019 for Rs.75,000/- dated
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19.10.2016 and balance loan of Rs.3 lakhs given by the
complainant to the accused by way of cash.
3. The accused has assured to repay the said loan
amount within 3 to 4 months. But she failed to repay the
same within agreed time. Accordingly the accused at the
request of the complainant has issued the cheque bearing
No.630561, for Rs.5 lakhs, dated 21.8.2017, drawn on
Karnataka Bank Ltd., Sanjayanagar branch, Bengaluru-
94. The complainant has presented the said cheque for
encashment purpose through her Banker by name
Corporation Bank Ltd., Sanjayanagar Branch, Bengaluru-
94. The said cheque was returned unpaid for the reason
"Funds Insufficient". The said Bank has issued return
memo on 31.8.2017. The legal notice dated 14.9.2017 has
issued to the accused. Despite of the legal notice the
accused failed to pay the cheque amount and committed
an offence punishable U/s.138 of the N.I.Act. It is prayed
to punish the accused.
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4. After the institution of the complaint it has been
registered it in PCR No.13152/2017 and on the basis of
materials cognizance of the offence has taken against the
accused and registered the criminal case against her and
issued summons to the accused. In response to the
summons the accused put her appearance through her
learned counsel and got enlarged on bail. The prosecution
papers were supplied to the accused and her plea was
recorded. The accused denied the plea and claimed for
trial.
5. During trial the complainant was examined as
PW-1 and on her behalf one PW-2 by name
H.Shivashankar Shenoy examined and got marked Ex.P.1
to P.14. The 313 statement of the accused was recorded
and the accused herself examined as DW-1 and got
marked Ex.D.1 to D.7.
6. I have heard the argument of both learned
counsels, perused the entire materials and the following
points would arise for my consideration.
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1. Whether the complainant proves that
the Accused towards the discharge of
legally enforceable debt/liability of
Rs.5,00,000/- has issued cheque and
on its presentation for encashment
purpose it was dishonored with an
endorsement of "Funds Insufficient"
and thereby accused committed an
offence punishable U/Sec.138 of N.I.
Act, 1881 ?
2. What order?
7. My answers on the above points for
consideration are as under.
Point No.1 : In the Affirmative
Point No.2 As per final order for the following:-
REASONS
8. Point No.1:- I have noticed the provision of
Section 118(a) 138 and 139 of the Act., 1881. and the said
provisions are hereby extracted and they reads thus:-
"118. Presumptions as to
negotiable instruments. - Until the
contrary is proved, the following
presumptions shall be made:-
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(a) of consideration - that every
negotiable instrument was made or
drawn for consideration, and that
every such instrument, when it has
been accepted, indorsed, negotiated
or transferred, was accepted,
indorsed, negotiated or transferred
for consideration
"139. Presumption in favour of
holder.- It shall be presumed, unless
the contrary is proved, that the
holder of a cheque received the
cheque of the nature referred to in
section 138 for the discharge, in
whole or in part, of any debt or other
liability."
9. On plain perusal of the provision of Section
118(a) and 139 of the N.I.Act., as extracted herein above, it
can be seen that initially the presumptions constituted
under those two provisions are favours the complainant.
However, it is open to an accused to raise a defence to
rebut the statutory presumptions. An accused can raise a
defence wherein the existence of legally enforceable debt or
liability can be contested.
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10. It is also well established that, an accused for
discharging the burden of proof placed upon him under a
statute need not examine himself. He may discharge his
burden on the basis of the materials already brought on
record. An accused has constitutional rights to maintain
silence. Standard of proof on part of the accused and that
of the prosecution in a Criminal case is different. The
prosecution must prove the guilt of an accused beyond all
reasonable doubt, the standard of proof so as to prove a
defence on the part of an accused is "Preponderance of
probabilities".
11. Under the light of the provisions extracted
herein above, I have perused the complaint and the
evidence placed on record by the parties to the complaint.
In the case on hand the complainant examined as PW-1
who filed her evidence affidavit on oath as her
examination-in-chief and wherein he has been deposed in
accordance with the contents of the complaint. The
complainant also got examined one independent witness as
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PW-2 and got marked Ex.P.1 to P.14. On the other hand
the accused has produced her defence evidence and
accordingly the accused examined as DW-1 and she got
marked Ex.D.1 to D.7.
12. The Ex.P.1 is the cheque dated 21.8.2017 for
Rs.5 lakhs and Ex.P.1(a) is the accused signature on the
cheque, Ex.P.2 is the Bank endorsement dated 31.8.2017,
Ex.P.3 is the office copy of the statutory notice dated
14.9.2017, Ex.P.4 and P.5 are the two postal receipts,
Ex.P.6 and P.7 are the two postal envelopes, Ex.P.8 to P.13
are the Bank Account statements of the complainant and
Ex.P.14 is the Passbook of the complainant. On perusal of
the exhibits produced by the complainant which reveals
that the complainant has complied all the ingredients of
Section 138(a) to (c) and as per order-sheet dated
25.10.2017 the complainant has instituted the complaint
well within the time.
13. The accused has produced her defence evidence
and she herself got examined as DW-1. This DW-1 in her
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examination-in-chief has deposed that she know the
complainant and from whom she borrowed loan of Rs.1
lakh and that was repaid with interest @ 10% per annum.
This DW-1 further deposed that she gave her three blank
cheques and blank On Demand Promissory Note and
consideration receipt to the complainant and apart from
that she has also given signed blank stamp paper to the
complainant. She further deposed that after repayment of
entire loan of Rs.1 lakh she has asked to the complainant
to return those documents but complainant failed to do so.
14. I have perused the cross-examination of the
DW-1 wherein it has been elicited that the accused has
availed loan of Rs.2 lakhs from the complainant and as
against the said loan of Rs.2 lakhs the accused has repaid
Rs.1 lakh to the complainant with interest. Further it has
been elicited that the accused for the first time had availed
loan from the complainant in the month of September
2016 and further it has been elicited that again in the
month of October 2016 the accused had availed from the
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complainant for the second time. This DW-1 in her further
cross-examination has stated that in the month of July -
August 2017 she repaid loan to the complainant.
15. During further cross-examination of DW-1 it
has been elicited from her mouth that, the complainant
gave loan of Rs.2 lakhs to her in the month of September
and October 2016. This DW-1 further stated that the
complainant had drawn said amount of Rs.2 lakhs from
her Bank account and disbursed to her. DW-1 in her
further cross-examination has stated that she received
loan of Rs.25,000/- from the complainant by way of
cheque on 19.10.2016. She denied the suggestion that on
27.10.2016 again she availed loan of Rs.75,000/- from the
complainant. On the other hand the DW-1 in her further
cross-examination has stated that she was in need of
money to pay advance sale consideration in respect of site
situated near Devanahalli and for that reason she took
loan of Rs.1 lakh from the complainant. She further stated
in her cross that complainant has collected her three
signed blank cheques from her and also collected three
11 CC.25495/2017 (J)
demand promissory note and consideration receipt and
also stamp papers. She denied the suggestion that she
owe loan of Rs.8 lakhs towards the complainant and on the
other hand she has stated that she availed loan of Rs.2
lakhs only from the complainant and out of that already
she has repaid Rs.1 lakh to the complainant and she is in
due of Rs.1 lakh only towards the complainant.
16. On perusal of the cross-examination of the DW.1
as narrated herein above it is crystallized that the
complainant and accused are known to each other and the
accused has availed loan from the complainant and issued
signed cheque in favour of the complainant. Further it is
crystallized that the accused unequivocally admits the
issuance of cheque and her signature on it. In the case on
hand the cheque has been marked at Ex.P.1 for a sum of
Rs.5 lakhs dated 21.8.2017 and accused signature has
been marked at Ex.P.1(a). Now the burden shifts on the
accused to rebut the statutory presumption as envisaged
U/s.118(a) and 139 of the N.I.Act. In this connection, the
accused has placed her reliance upon the Ex.D.2 which is
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Forensic mobile phone examination report dated 2.1.2019
issued by Truth Labs Forensic Services, Bengalur and she
also placed reliance upon the Ex.D.3 certificate U/s.65-B
of the Indian Evidence Act issued by the said Trust labs
and Ex.D.4 which is the Compact Disc. For the reasons
mentioned herein below, the said piece of evidence would
not come into the aid of the accused towards reversing the
statutory presumption as envisaged U/s.118(a) and 139 of
the N.I.Act. The first reason is that as per materials the
accused has got created the said documents during the
pendency of the case. The second reason is that there is no
judicial order regarding referring the alleged mobile to the
said alleged handwriting agency and the third reason is
that the accused failed to examine the author of said
exhibits. Therefore, the Ex.D.2 to D.4 have no evidentiary
value and they would not come into the rescue of the
accused to rebut the statutory presumption as constituted
U/s.118(a) and 139 of the N.I.Act.
13 CC.25495/2017 (J)
17. Further it is pertinent to note that during her
cross-examination of the PW-1 nothing has been elicited
from her mouth that there was no existence contract of
debt between the complainant and the accused at the given
point of time and the accused has not at all issued the
cheque towards the discharge of legally enforceable
debt/liability as claimed under the said instrument. No
doubt the defence of the accused was that there were other
financial transactions between her and the complainant
and in connection of those alleged transactions three
blank signed cheques, On Demand Promissory Notes and
stamp papers were handed over to the complainant. It is
significant to note that no material evidence has been
placed on record by the accused to prove that there were
other transactions between the accused and the
complainant other than the transactions involved in the
case on hand. Under the circumstances, there is no
probability in the defence of the accused that there were
other financial transactions between her and the
complainant and in respect of those alleged transactions
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she issued three signed blank cheques, on demand
promissory notes and stamp paper. Further it is pertinent
to note that nothing has been elicited from the mouth of
PW-2 to disbelieve and discard his examination-in-chief.
This PW-2 has supported the case of the complainant.
18. Since the accused has admitted issuance of
cheque and her signature on it which attracts the ratio laid
down by the Hon'ble Supreme Court of India in its
decisions reported in (2001) 6 SCC Page No.16 - Hiten P.
Dalal V/s.Bratindranath Banerjee, (2009) SCC Page
No.513 - Kumar Exports V/s.Sharma Carpets and (2010)
11 Page No.441 - Rangappa V/s.Sri.Mohan. With due
respect, I have perused the said decision and wherein it
has held that the cheque shall be presumed to be for
consideration unless and until, the Court forms a belief
that the consideration does not exist or considers the non
existence of consideration was so probable that a Prudent
man would under no circumstances of the case, act upon
the plea that the consideration does not exist. In the case
on hand already it has been stated herein above that, the
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accused is failed to prove that there was no existence of
consideration at the given point of time and she has not at
all issued the instant cheque towards discharge of legally
enforceable debt/liability of Rs.5 lakhs as claimed under
the Ex.P.1. Thus, it is crystallized from the evidence that
the accused is failed to rebut the presumption that the
cheque was not issued for any debt or other liability.
19. The another defence raised by the accused was
that, she has issued her signed blank cheque and
accordingly the complainant misused the same and got
filed the instant complaint. This defence also does not
survive for consideration in view of the decisions of the
Hon'ble Supreme Court of India reported in Crl. Appeal
Nos. 230-231 of 2019 (SLP) (Crl) Nos.9334-35 of 2018)
Beersingh V/s.Mukeshkumar. With due respect I have
gone through the said decision and extracted the
paragraph No.37 and 38 of the said Judgment and those
paragraphs reads thus:-
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37. 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
attracted.
38. 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
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discharge of a debt or liability by
adducing evidence.
20. Thus on assessment of entire evidence as per
ratio laid down in the decisions stated supra, it is
crystallized through the evidence that, the complainant has
proved that the accused has issued the Ex.P.1 the cheque
towards discharge of legally enforceable debt/liability of
Rs.5 lakhs. Further it is crystallized that the accused
failed to rebut the statutory presumption as envisaged
U/s.118(a) and 139 of the N.I.Act. Hence, the accused is
found guilty ford the offence punishable U/s.138 of the
N.I.Act. In view of the aforesaid reasons, I proceed to
answer point No.1 in the Affirmative.
21. Point No.2 : In view of the reasons assigned on
Point No.1, I proceed to pass the following:-
ORDER
As per the provisions of Sec.255(2) Cr.P.C. the accused is hereby sentenced for the offence punishable u/s.138 of NI Act, 1881. The Accused shall liable to pay fine of Rs.5,10,000/- (Rupees Five Lakhs Ten 18 CC.25495/2017 (J) Thousand Only.) On deposit of fine amount the complainant is entitled for compensation of Rs.5,05,000/- (Rupees Five Lakhs Five Thousand only). The remaining balance amount of Rs.5,000/- is to be forfeited to the state.
In default of payment of the fine amount accused shall undergo simple imprisonment for six months.
The personal bond executed by the accused is hereby stands cancelled and cash surety of Rs.4,000/- furnished by the accused shall be forfeited to the state after expiry of appeal period.
Copy of the judgment shall be furnished to the accused at free of cost.
(Dictated Judgment to the Stenographer directly on the computer, transcript thereof is computerized and printout taken by her, is verified and then pronounced by me in Open Court on this the 17th day of March-2020.) (Subhash.B.Hosakalle) XV Addl. CMM., Bangalore.
ANNEXURE Witnesses examined for the Complainant:-
PW.1 Smt.Suhasini Umesh Sharma. PW.2 H.Shivashankar Shenoy
19 CC.25495/2017 (J) Documents marked for the Complainant:-
Ex.P.1 Cheque
Ex.P.1(a) Signature of the accused.
Ex.P.2 Bank endorsement.
Ex.P.3 Legal Notice dated 14.9.2017
Ex.P.4 & P.5 Two Postal Receipts.
Ex.P.6 & P.7 Two Postal Envelopes.
Ex.P.8 to P.13 Six Bank Account Statements Ex.P.14 Passbook of the complainant.
Witnesses examined For Defence:-
DW-1 Priya Documents marked for Defence:-
Ex.D.1 Certified copy of Parlor Products document.
Ex.D.2 Truth Lab given report. Ex.D.3 65-B Certificate.
Ex.D.4 Compact Disc.
Ex.D.5 Sanjayanagar P.S. given
Acknowledgement.
Ex.D.6 office copy of the police complaint.
Ex.D.7 Police endorsement.
(Subhash.B.Hosakalle)
XV Addl.CMM., Bangalore.
20 CC.25495/2017 (J) 17.03.2020 (Judgment Pronounced in the Open Court Vide Separate Order sheet ORDER As per the provisions of Sec.255(2) Cr.P.C. the accused is hereby sentenced for the offence punishable u/s.138 of NI Act, 1881. The Accused shall liable to pay fine of Rs.5,10,000/- (Rupees Five Lakhs Ten Thousand Only.) On deposit of fine amount the complainant is entitled for compensation of Rs.5,05,000/- (Rupees Five Lakhs Five Thousand only). The remaining balance amount of Rs.5,000/- is to be forfeited to the state.
In default of payment of the fine amount accused shall undergo simple imprisonment for six months. 21 CC.25495/2017 (J) The personal bond executed by the accused is hereby stands cancelled and cash surety of Rs.4,000/- furnished by the accused shall be forfeited to the state after expiry of appeal period.
Copy of the judgment shall be furnished to the accused at free of cost.
(Subhash.B.Hosakalle) XV Addl.CMM., Bangalore.
22 CC.25495/2017 (J)