Bangalore District Court
Miss Jayanthi vs Smt. Vijaya Prasad on 26 February, 2016
N THE COURT OF THE XIX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY
Dated this the 26th day February, 2016
PRESENT: SMT. ISHRATH JAHAN ARA, B.A.L., L.L.B.,
XIX ADDL.C.M.M.BANGALORE.
Case No: CC No. 15252/2012
Complainant: Miss Jayanthi
D/o. Mallashetty
Aged about 25 years,
R/at Balaji Extension,
6th Cross, Hongasandra,
Bangalore -560 068.
Accused: Smt. Vijaya Prasad
Nagarajappa Building,
Mother Teresa School Road,
Yelanahalli, Begur Main Road,
Bangalore -560 068.
Offence complained of: U/s.138 of N.I. Act
Plea of accused: Pleaded not guilty
Opinion of the Judge Accused found guilty
Date of order: 26th February 2016
JUDGMENT
The complainant has filed this complaint U/s.200 of Cr.P.C. against the accused for the offence punishable U/s. 138 of N.I. Act.
2. The brief facts of the complaint that;
The Complainant stated that the Complainant and accused are known to each other and out acquaintance, the accused had 2 C.C.No.15252/2012 borrowed a hand loan of Rs.2,20,000/-from this Complainant in the month of October 2010 for the purpose of purchasing an Auto- Rickshaw and also for business requirements with a promise to repay the loan amount within two months. Subsequently, after repeated request and demand made by this Complainant, the accused towards repayment of the loan amount, had issued her cheque bearing No.940221 dtd. 25.2.2012 for Rs.2,20,000/- drawn on Vijaya Bank, MSRS Nagar, Bangalore with a request to present the said cheque for encashment and it will be honoured on its presentation.
3. It is further submitted by the Complainant that she presented the said cheque before her banker Canara Bank, Begur branch, Bangalore for encashment but, the said cheque returned dishonoured with an endorsement "Payment stopped by the drawer" on 1/3/2012 and the same was informed to this Accused. As the Accused has failed to make payment of the cheque amount, she got issued the Legal Notice through her Counsel on 14.3.2012 through RPAD and as well as through Courier service, calling upon the Accused to make payment of the cheque amount within 15 days from the date of receipt of notice. The said notice issued through Courier was duly served to the Accused. The Accused intentionally 3 C.C.No.15252/2012 refused to receive the notice issued under RPAD and the same was returned with a postal shara "intimation delivered, not claimed/ /Hence returned to sender". The accused even inspite of receipt of Legal Notice, has neither chosen to make payment of the cheque amount nor she has replied the reply by denying the transaction. The Accused only with an intention to cheat this Complainant, has made stop payment of the cheque amount and she failed to make payment of the cheque amount even after receipt of Legal Notice and thereby, the Accused has committed an offence punishable u/Sec.138 of N.I. Act.
4. After recording of sworn statement of the complainant the private complaint lodged by the complainant was registered as a Criminal Case, summons was issued as against the accused. The accused appeared through her counsel and she was enlarged on bail. Plea of accusation was read over to the accused. The accused pleaded not guilty and claimed to be tried.
5. The complainant herself got examined as PW1 and she got produced 5 documents marked as Ex.P1 to Ex.P5 and closed her side of evidence.
4 C.C.No.15252/2012
6. After closure of the complainant side evidence, accused Statement u/Sec.313 Cr.P.C. recorded and read over to the accused. The accused denied the incriminating evidence in toto and she intended to lead her evidence. The Accused got herself examined as DW1 and she got produced 7 documents marked as Ex.D1 to Ex.D7 and closed her side of evidence.
7. I Have heard the arguments and have perused the entire records.
8. The only point arise for my consideration is:
1. Whether the Complainant has proved the guilt of the accused u/s 138 of NI Act beyond all reasonable doubts?
2. What order?
9. My findings to the above point are as under:
Point No.1 : In the Affirmative
Point No.2 : As per final order
for the following:
REASONS:
10. Point No.1: The entire burden is on the complainant to prove her case and also to prove the above point. In order to prove the same, the complainant stepped into the witness box, got 5 C.C.No.15252/2012 examined as PW-1 and she filed her affidavit in lieu of the oral evidence by reiterating the complaint averments.
11. PW1 deposed that the accused is known to her and out acquaintance, the accused had borrowed a hand loan of Rs.2,20,000/- from her in the month of October 2010 for the purpose of purchasing an Auto-Rickshaw and also for business requirements with a promise to repay the loan amount within two months. She deposed that subsequently, after repeated request and demand made by her, the accused towards repayment of the loan amount, had issued her post-dated cheque bearing No.940221 dtd. 25.2.2012 for Rs.2,20,000/- drawn on Vijaya Bank, MSRS Nagar, Bangalore with a request to present the said cheque for encashment and it will be honoured on its presentation.
12. She further deposed that she presented the said cheque before her banker for encashment but, the said cheque returned dishonoured with an endorsement "Payment stopped by the drawer" on 1/3/2012 and the same was informed to this Accused. She deposed that as the Accused has failed to make payment of the cheque amount, she got issued the Legal Notice through her Counsel on 14.3.2012 through RPAD and as well as through Courier service, 6 C.C.No.15252/2012 calling upon the Accused to make payment of the cheque amount within 15 days from the date of receipt of notice. She deposed that the said notice issued through Courier was duly served to the Accused. She deposed that the Accused intentionally refused to receive the notice issued under RPAD and the same was returned with a postal shara "intimation delivered, not claimed/ /Hence returned to sender". She deposed that the accused even inspite of receipt of Legal Notice, has neither chosen to make payment of the cheque amount nor she has replied the reply by denying the transaction. She deposed that the Accused only with an intention to cheat her, has made stop payment of the cheque amount and she failed to make payment of the cheque amount even after receipt of Legal Notice and thereby, the Accused has committed an offence.
13. PW1 in order to prove her case got produced the cheque marked as Ex.P1. She deposed that the signature found on Ex.P.1 is that of this accused. She got identified the signature of the accused marked as Ex.P1(a). She got produced the bank endorsement marked as Ex.P.2. She got produced the copy of legal notice marked as Ex.P3. She got produced the unserved RPAD Cover marked as Ex.P.4 and the notice kept in the said cover is marked as Ex.P.4(a). She got 7 C.C.No.15252/2012 identified the complaint marked as Ex.P.5 and her signature on compliant is marked as Ex.P.5(a).
14. The accused has denied the entire case of the Complainant and denied the very fact that she had borrowed a hand loan of Rs.2,20,000/- from this complainant and in order to repay the said loan amount, had issued her Ex.P1 cheque and the same was bounced.
15. The Learned Counsel for the accused subjected PW1 for cross-examination and he extensively cross-examined the PW1 at length.
16. PW1 in her cross-examination stated that she and this accused are working at Garments Factory and as such they were close friends. PW1 has stated that she was working as a Supervisor and she was earning Rs.7,500/- per month as a salary from her tailoring work. PW1 has categorically stated that she advanced the loan amount of Rs.2,20,000/- to this accused on 17.10.2010 and this accused borrowed the loan amount with an intention to purchase a new Auto-Rickshaw for her husband.
17. She further stated that she advanced the entire loan amount at her house and after advancement of loan amount, she has 8 C.C.No.15252/2012 not obtained any document from this accused towards security of the loan amount. She further stated that she advanced the entire loan amount of Rs.2,20,000/- in cash and after receipt of the loan amount, the accused in the month of November 2011 in order to repay the loan amount, had issued her post-dated Ex.P1 cheque by disclosing the date on the cheque as 25.2.2012.
18. The accused has taken up the specific defence that, this accused and Complainant are very close to each other and they were visiting their respective house and accordingly during the 2012 the accused was fell ill and hospitalized. This Complainant with an intention to visit the accused to enquire about her health condition, has committed theft of her duly signed blank cheque from her and subsequently, misused the said cheque for her convenience as Ex.P1 cheque for Rs.2,20,000/- and filed this false complaint, even though there was no any loan transaction in-between them. Though the said defence was put to PW1 during her cross-examination by suggesting that during the year 2011 when this accused was fell ill and hospitalized, with an intention to enquiry about her health condition, visited her house and she committed theft of her duly signed blank cheque from her house and subsequently, misused the said cheque and created the said cheque as Ex.P1 for Rs.2,20,000/- and filed this 9 C.C.No.15252/2012 false complaint, the said suggestion was categorically denied by PW1.
19. She further denied the suggestion that the Ex.P1 cheque is a thefted cheque by her from the house of this accused. She further denied the suggestion that she after committing theft of the accused's cheque, she has given her lot of trouble and even she lodged the police complaint against this accused and her family-members.
20. PW1 stated that she is not aware whether this accused was also lodged a police complaint against her before the Police Commissioner and the said complaint was transferred to Mico Layout Police Limit ACP and subsequently, the ACP Transferred the said complaint to Hulimavu Police Station for enquiry. Likewise, the PW1 denied the suggestion that in a complaint lodged by her against this accused before Madivala Police she has stated that the accused had given her duly signed blank cheque after receipt of the loan amount of Rs.2,20,000/- and along with a complaint, she has also annexed the said duly signed blank cheque. She denied the suggestion that she has no financial capacity to advance the loan amount of Rs.2,20,000/- to this accused and even this accused has not borrowed any loan much less amounting to Rs2,20,000/- from her. 10 C.C.No.15252/2012
21. PW1 stated that she has no documents with her to prove that on 17.10.2010 she advanced the hand loan of Rs.2,20,000/- to this accused. The PW1 has categorically denied that the accused has not issued Ex.P1 cheque towards repayment of the loan amount. She denied the suggestion that she only with an intention to harass this accused as she has lodged the complaint against her before the Police Commissioner, she on a ill-will, had lodged this false complaint even though there was no any loan transaction in-between them. She further denied the suggestion that the accused is not liable to pay the cheque amount disclosed in Ex.P1. Though the PW1 during her cross-examination, admitted the copy of the F.IR. lodged before the Madivala Police on 26.2.2012 and the said document was marked as Ex.D.1 and however, she denied the suggestion that she has lodged this false complaint against this accused with an intention to make a wrongful gain for herself and to cause monetary loss to this accused.
22. PW1 in her cross-examination, has denied other suggestions put to her and denied that the accused is not liable to pay the cheque amount disclosed in Ex.P1 cheque. Though the accused has categorically denied the issuance of cheque in favour of PW1 towards repayment of the loan amount, however, the accused 11 C.C.No.15252/2012 has categorically admitted the fact that the Ex.P1 cheque is belong to her bank account. The accused even admitted her signature found on Ex.P1(a). The accused even did not chosen to deny that her duly signed blank cheque was thefted by the Complainant from her house and subsequently, misused the same as Ex.P1 and filed this false complaint based on created and concocted cheque, even though there was no any loan transaction in-between them. Though the said defence was put to PW1 during his cross-examination, nothing has been elicited from the mouth of PW1 to believe the defence of the accused and to believe that the Ex.P1 cheque is a thefted cheque by this Complainant from the house of this accused.
23. Admittedly, though a suggestion was put to PW1 that no notice was served on this accused, as she was not residing in the address disclosed in Ex.P3 notice, however PW1 has categorically deposed that she immediately after receipt of the Ex.P2 bank endorsement, on 14.3.2012 got issued Ex.P3 notice, calling upon the accused to make payment of the cheque and also by intimating the dishonour of the cheque through RPAD and as well as through Courier.
24. She deposed that the notice issued under Courier was duly served on this accused but, the accused intentionally refused to 12 C.C.No.15252/2012 receive the notice issued under RPAD and the same was returned unserved with a postal shara "intimation delivered, addressee not claimed". The PW1 got produced the copy of the Legal Notice marked as Ex.P.3 along with the unserved postal cover marked as Ex.P.4, wherein the Postal Authorities made a shara that "intimation delivered and the addressee not claimed the notice and therefore returned to sender". The accused has not chosen to deny the shara written on Ex.P4.
25. Moreover, no suggestion was put to PW1 by denying her testimony that she has not issued notice under Courier Service and as such no notice was served on her. Admittedly, the accused during the cross-examination of PW1, has not chosen to deny her testimony with respect to service of notice through Courier Service. However, the PW1 categorically deposed that the accused personally received the notice issued through Courier Service and after receipt of the Legal Notice, this accused has neither chosen to make payment of the cheque amount nor she has sent her reply by denying the transaction. Even these facts were not denied by the accused. The accused though denied her address disclosed in Ex.P3 and stated that even though she was resided in the said address subsequently, she changed her house to some other place and as such no notice was 13 C.C.No.15252/2012 served on her. Though the said suggestion was put to PW1 during her cross-examination , however, the PW1 has categorically denied the entire suggestions put to her and denied that the accused was not resided in the address disclosed in Ex.P3 as on date of service of notice and as such the no notice was served on her. The accused except suggesting PW1 that the accused was not resided in the address disclosed in Ex.P3 as on date of service of Ex.P3 notice, has not suggested what is her correct address and where exactly she was residing as on date of Ex.P3 notice.
26. As I have discussed supra, the Ex.P4 Postal shara does not disclose that the addressee was not residing in the address and as such it is returned to the sender. In such situation, the defence taken by the accused that she was not resided in the address disclosed in Ex.P3 and as such no such notice was served on her, cannot be believable and acceptable. The accused even inspite of receipt of Legal Notice, neither chosen to make payment of the cheque amount nor she has sent her reply by denying the transaction. In such situation, an adverse inference has to be drawn against this accused that she after receipt of the notice, after admitting the contents of the notice, did not resisted the claim of the Complainant by sending her reply.
14 C.C.No.15252/2012
27. The oral and documentary evidence adduced before this court by the Complainant clearly proves that the notice issued by her u/Sec.138 (b) of N.I. Act was served on this accused and she had the knowledge of the notice and even inspite of the same, she did not resisted the claim of the Complainant by sending her reply. No doubt, the accused got produced Ex.D1 document before this court to prove that in Ex.D1 document the Complainant herself has categorically stated that the accused after receipt of the loan amount of Rs.2,20,000/- towards repayment of the loan amount, given her duly signed blank cheque. Though PW1 during her cross- examination except admitting the lodging of F.I.R. Before Madivala Police denied the contents of the complaint. On the contrary, the Ex.D1 document clearly discloses that the accused after receipt of the loan amount of Rs.2,20,000/-, given her a duly signed blank cheque with a request to fill the cheque and to present the said cheque for encashment. Though this fact was denied by this accused, however, as I have discussed supra, the accused categorically admitted her signature on her Ex.P1 cheque.
28. This clearly establishes that the accused given her by authorizing this Complainant to fill the cheque and to present the cheque for encashment. The defence taken by the accused that her 15 C.C.No.15252/2012 cheque was thefted by this Complainant was categorically denied by PW1 and she denied that she after committing theft of the duly signed blank cheque of this accused, created and concocted the same as Ex.P1 for Rs.2,20,000/- and filed this false complaint. In such situation, the burden shifts on this accused to prove her defence and to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act and to prove that the Complainant has committed theft of her duly signed blank cheque and subsequently, she has created and concocted her cheque as Ex.P1 for Rs.2,20,000/- and filed this false complaint.
29. The Accused in order to prove her defence, stepped into the witness box and got examined as DW1. DW1 deposed that she along with this Complainant were working in a same Garment Factory, since from she joined the factory and started working, earlier to that the Complainant was not acquainted to her. She deposed that the Complainant was frequently visiting her house at Hongasandra and she used to stay in her house. She further deposed that during the year 2011, she shifted her residence to Yalenahalli Village and subsequently in the year 2013 she shifted her house to Begur.
16 C.C.No.15252/2012
30. She has categorically deposed that during the year 2011 she became ill and due to her ill health, she was taken treatment for about 6 - 7 months at hospital and during that time the Complainant was frequently visiting her on the guise to enquire her health condition and during that time, the Complainant advised her to do an immoral activity for the purpose of money as she was facing financial crisis by telling that she had a financial crisis and to overcome the financial crisis she has to do an immoral activity. She deposed that as she has refused to hear the advise of the Complainant, the Complainant got angry against her and she threatened her that she will implicate in a case and recover Rs.50,000/- to Rs.1,00,000/- from her. She further deposed that when she went to the house of this Complainant to enquire, she came to know that the Complainant had committed theft of her duly signed blank cheque from her house. Subsequently, on 20.2.2012 she got a phone cal from Madivala Police Station and accordingly, she went to Madivala Police Station, the Complainant had lodged a complaint against her and her brother-in-law demanding the loan amount wherein she explained the police. She deposed that the Complainant based on the thefted cheque, had filed this false complaint. 17 C.C.No.15252/2012
31. She further deposed that the police have advised her to file one more complaint before Hulimavu Police and accordingly, she went to Hulimavu Police Station, wherein the police have refused to receive her complaint and therefore, she lodged the complaint before the Police Commissioner as per Ex.D2. The Police Commissioner referred the said complaint for investigation. She further deposed that immediately she filed an application before her banker not to honour the cheque, if in case the same is presented for encashment as per Ex.D3. She got produced the document before this court to prove that she was hospitalized and taken treatment marked as Ex.D.4. She got produced the Electricity Bill to prove that she was resided at Yelenahalli and the said Bill was marked subject to objection with a direction to produce the receipt marked as Ex.D.5. Admittedly, the DW1 has not chosen to produce the receipt of the Bill even inspite of direction. She got produced the receipt for having purchased the Gas Cylinder for her domestic use marked as Ex.D6 to prove her residential address. She got produced her Ration Card marked as Ex.D7.
32. She has categorically deposed that there was no any loan transaction in-between her with this Complainant and even she has not issued Ex.P1 cheque in favour of this Complainant towards 18 C.C.No.15252/2012 repayment of the loan amount. She deposed that the Police Commissioner referred the complaint to Mico Layout Police limit A.C.P. for investigation and subsequently, the said A.C.P. after recording her statement and the statement of the Police Constable, referred the complaint to Hulimavu Police Station. She deposed that the Madivala Police finally had shown her duly signed blank cheque. After about 6 - 7 months the Hulimavu Police informed her that Complainant had filed this complaint against her. She categorically deposed that till the police informed her about the filing of this complaint, she has no knowledge about the filing of this complaint and even she has not received any notice. DW1 deposed that there was no any legally dischargeable debt or other liability towards Complainant and even she has not issued Ex.P1 cheque towards repayment of the loan amount. She deposed that the Complainant only with an intention to make an unlawful gain for herself and to cause monetary loss to her, had filed this false complaint based on her thefted cheque. Hence, DW1 prays to dismiss the complaint.
33. The Complainant denied the testimony of DW1 and her learned Counsel subjected DW1 for cross-examination. DW1 in her cross-examination categorically admitted that during the year 2011 -12 she was resided at Yelenahalli Village. DW1 admitted that 19 C.C.No.15252/2012 she has not lodged any complaint against this Complainant before any of the police station when she advised her to do an immoral activity for the sake of money. Though she denied that she only with an intention to ran away from her liability to pay the cheque amount, is deposing false before this court that this Complainant had advised her to do an immoral activity for the sake of money.
34. Likewise, the DW1 has admitted that till this day she has not lodged any complaint against this Complainant that she has committed theft of her duly signed blank cheque from her house. Admittedly, the DW1 has not initiated any legal action against this Complainant for committing theft of her duly signed blank cheque and misusing the said cheque for Rs.2,20,000/-. The DW1 even after knowledge of misuse of her cheque by the Complainant, she has not initiated any legal action against this Complainant. This clearly establishes that the accused only for the sake of defence, has taken up the false defence that the Complainant has thefted her cheque from her house and subsequently, she has misused the said blank cheque and created the same as Ex.P1 for Rs.2,20,000/-.
35. The DW1 in her cross-examination stated that in Ex.D3 - Application she has disclosed the cheque number only based on the 20 C.C.No.15252/2012 information given by the police to her at police station. Admittedly, in Ex.D3 the accused has given the cheque number as '940221' and she has stated that the said cheque was given by her based on the information given by the police. The DW1 has not explained before this court that in which proceedings, the police have given the cheque number and who actually informed her about the cheque number. Though she denied the suggestion that before issuing the her Ex.P1 cheque to the Complainant she has taken the xerox copy of the duly signed blank cheque and she presented the said blank cheque before this court. She denied the suggestion that she has intentionally made stop payment of the cheque amount. Though DW1 in her cross-examination categorically stated that she immediately after noticing that her cheque was thefted by the Complainant she has given an application before her banker to make stop payment of the cheque amount.
36. On the contrary, it is not the defence of the DW1 that as on date of filing of application of Ex.D3 before her banker she had sufficient funds in her bank account and as such she made stop payment of the cheque amount. The DW1 neither in her oral evidence deposed with respect to available bank balance in her bank account nor she has produced documents before this court to prove 21 C.C.No.15252/2012 that as on date of Ex.D3 document before her banker, she had the sufficient funds in her bank account and as such she made stop payment of the cheque. The DW1 admitted that she has not produced any endorsement for receipt of Ex.D2 document by the police and even she has not produced any document before this court about the status of her information lodged as per Ex.D2. Though she denied the suggestion that even though she has not lodged the complaint before any of the police station and she only for the sake of this case, has created Ex.D2 document.
37. The DW1 in her cross-examination categorically admitted that she was fell ill as she had the leg problem and during that time the Complainant was frequently visiting her house on a guise to enquire her health condition and during that time, she had committed theft of her duly signed blank cheque from her house. No doubt, the entire defenc of the DW1 is that her duly signed blank cheque was committed theft by this Complainant and subsequently, she misused said cheque and created this same as Ex.P1 and filed this false complaint. However, nowhere the accused either in her oral evidence or during the cross-examination of PW1 suggested that why she has kept duly signed blank cheque at his house and what is the necessity for her to keep a duly signed blank cheque at her house. 22 C.C.No.15252/2012 The DW1 except adducing the oral evidence that she has kept a duly signed blank cheque at her house and the same was thefted by the Complainant, has not chosen to prove the same to the satisfaction of the court by adducing documentary evidence before this court.
38. Likewise, the DW1 except adducing the oral evidence that no notice was served on her and as such she was unaware of the filing of this complaint till a warrant was issued against her, has utterly failed to prove that she was not resided in the address disclosed in Ex.P3 during that period. However, DW1 herself got produced the document before this court to prove that during the year 2011-12 she was very much resided in Yelenahalli village in the address disclosed in Ex.P3. Even these facts clearly proves that the accused only for the sake of defence, has taken up the false defence and she was not resided in the address disclosed in Ex.P3 and as such no notice was served on her.
39. The DW1 in her cross-examination admitted that in Ex.D4
- Medical Document the name of the Doctor, who has treated her was not shown and even the Seal and Signature of the Hospital was not disclosed. Admittedly, in Ex.D4 no Doctor's name was shown and even it is not disclosed who has treated this accused and 23 C.C.No.15252/2012 moreover this document does not disclose that this accused was taken treatment as an In-patient for a period of 6 - 7 months. Likewise, she has admitted that Ex.D7 - Ration Card was issued to her on 31.12.2012 much after the date disclosed in Ex.P3. She denied the suggestion that during the month of October 2010 she had borrowed a hand loan of Rs.2,20,000/- from this Complainant and towards repayment of the said loan amount, she has given her post- dated cheque in the month of November 2011 and now only with an intention to ran away from her liability to repay the loan amount, has taken up the false defence before this court and deposing false before this court.
40. The contention of DW1 that the PW1 herself in Ex.D1 document disclosed that she has collected duly signed blank cheque from towards loan amount of Rs.2,20,000/- and that itself discloses that the Complainant herself for her convenience, filled-up the cheque and presented the same for encashment and therefore, the complaint has to be dismissed, cannot be acceptable and it holds no merit. The accused by giving her duly signed blank cheque, consented the Complainant to fill-up the cheque and accordingly, the Complainant filled-up the cheque and presented the cheque for encashment.
24 C.C.No.15252/2012
41. Likewise, the oral evidence of DW1 that her duly signed blank cheque was thefted by this Complainant and she created and concocted the same as Ex.P1 for Rs.2,20,000/- and filed this false complaint, cannot be believable and acceptable. Admittedly, the DW1 except adducing the oral evidence that her duly signed blank cheque was thefted by this Complainant, has utterly failed to prove the same to the satisfaction of the court. There is nothing on record to believe that the Complainant has thefted the duly signed blank cheque of this accused and subsequently, she created and concocted the cheque as Ex.P1 for Rs.2,20,000/- and filed this false complaint. Admittedly, the accused has not produced any piece of document before this court to believe her defence and to believe her testimony. The oral evidence of DW1 is not sufficient and convincing to believe her defence and to discard the case of the Complainant.
42. As I have discussed supra, the DW1 except adducing the oral evidence that her duly signed blank cheque was thefted by this Complainant, has not chosen to prove the same to the satisfaction of the court. The Ex.D1 to Ex.D7 documents does not take away the case of the Complainant nor it will rebut the presumption available to this Complainant u/Sec.139 of N.I. Act. The accused has utterly 25 C.C.No.15252/2012 failed to prove the defence to the satisfaction of the court by adducing convincing evidence before this court. The accused has failed to prove that there was no any loan transaction in-between her with this Complainant much less amounting to Rs.2,20,000/-.
43. Even when this Accused was question u/Sec.313 Cr.P.C by this court, the Accused except denying the incriminating evidence deposed against her by the PW1 has not put for the any defence from her side. Likewise, the Accused has utterly failed to rebut the presumption available to this Complainant u/Sec.118 and also u/Sec.139 of N.I. Act it reads thus respectively.
44. As per the provisions of Sec.118, which reads thus:
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;
b. As to date - that every negotiable instrument bearing a date was made or drawn on such date; c. As to time of acceptance - that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; d. As to time of transfer - that every transfer of a negotiable instrument was made before its maturity;
e. As to order of endorsements - that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;26 C.C.No.15252/2012
f. As to stamps - that a lost promissory note, bill of exchange or cheque was duly stamped; g. That holder is a holder in due course - that the holder of a negotiable instrument is a holder in due course;
45. Likewise, the accused also failed to rebut the presumption available to this Complainant u/s.139 of N.I. Act which reads:
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.
46. As I have discussed supra, it is not the defence of the accused that she had the sufficient bank balance in her bank account and as such she had given Ex.D3 before her banker to make stop payment of the cheque amount. There is nothing on record to believe the defence of the accused and to discard the case of the Complainant.
47. On the contrary, the learned Counsel for the Complainant has vehemently argued that this Complainant before filing of this complaint, has followed all the procedures prescribed u/Sec.138 of N.I. Act and this Accused even after receipt of the Legal Notice, has neither chosen to make payment of the cheque amount well within 27 C.C.No.15252/2012 the period of limitation nor she has sent her reply by denying the transaction and therefore, an adverse inference has to be drawn against this Accused and she has to be convicted in accordance with law, is fully convinced this court. Admittedly, the Accused even after receipt of Ex.P.3 Legal Notice neither chosen to make payment of the cheque amount nor she has sent her reply by denying the transaction. In such situation, the arguments canvassed by the learned Counsel for the Complainant, is fully convinced this court and as such it is accepted.
48. The complainant by adducing oral and documentary evidence before this court has proved the guilt of the accused beyond all reasonable doubt. There is no whatsoever doubt in the mind of court about the case of the complainant. The oral and documentary evidence adduced before this court by the complainant, is fully corroborating with each other and convinced this court about this case. The complainant by adducing oral and documentary evidence before this court, bring home the guilt of the accused beyond all reasonable doubt. Therefore, by taking into consideration the facts and circumstances and evidence available on record, I answer this Point No.1 in affirmative.
28 C.C.No.15252/2012
49. Point No.2. In view of my findings on the above point and the reasons stated therein, I proceed to pass the following:
ORDER Acting u/Sec. 255 (2) of Cr.P.C. the accused is hereby convicted for the offence punishable u/Sec. 138 of N.I. Act.
The accused is sentenced to pay a fine of Rs.2,75,000/-(Rupees Two Lakhs Seventy-five Thousand only). In any default to pay fine amount shall under go simple imprisonment for 6 months.
Out of fine amount recovered under Section 357 of Cr.P.C. a sum of Rs.2,70,000/- (Rupees Two Lakhs Seventy Thousand only) shall be paid to the complainant which includes the cheque amount and also cost of the proceedings. Remaining fine amount of Rs.5,000/- shall be forfeited to State.
The bail bond and surety bonds of the accused stands cancelled.
Office to furnish free copy of the judgement to the accused forthwith.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified and then pronounced by me in the Open Court on this the 26th day of February, 2016) (ISHRATH JAHAN ARA) XIX ADDL.C.M.M., Bangalore ANNEXURE:
Witnesses examined on behalf of the Complainant: PW.1 Miss. Jayanthi Witnesses examined on behalf of the Accused: D.W.1 Mrs.Vijaya Prasad 29 C.C.No.15252/2012 Documents marked 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 Copy of the Legal Notice
Ex.P.4 Unserved postal cover
Ex.P.4(a) Notice kept in the said cover
Ex.P.5 Complaint
Ex.P.5(a) Signature of the Complainant
Documents marked on behalf of the Accused:
Ex.D1 Statement given by the Complainant before
Madivala Police
Ex.D2 Copy of Complaint lodged before the Police
Commissioner
Ex.D3 Application filed before banker
Ex.D4 Medical Report
Ex.D5 Electricity Bill
Ex.D6 Gas Cylinder receipt
Ex.D7 Ration Card
XIX ACMM, B'lore.