Bangalore District Court
Indira Nagar Chit Funds & vs Smt.Sheela.M on 25 April, 2017
IN THE COURT OF LVII ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL UNIT, BENGALURU
-: PRESENT :-
SATHISH J. BALI, B.Com., LL.M.
LVII ADDL. CHIEF METROPOLITAN MAGISTRATE,
BENGALURU.
DATED THIS THE 25TH DAY OF APRIL, 2017.
C.C.No.50207/2015
COMPLAINANT : Indira Nagar Chit Funds &
Trading Company (Pvt.) Ltd.,
Registered Office at No.258,
Indiranagar,
Bangalore-560 038,
Represented by its Recovery
incharge cum GPA Holder
Sri.B.Umakanth,
V/s
ACCUSED : Smt.Sheela.M,
W/o.Chandrashekar .S,
Aged about 27 years,
Flat No.1, Pearl Banjara
Apartments,
1st Cross, Opp:Mountford
Church, New Byappanahalli,
Indiranagar, Bangalore-560 038.
****
JUDGMENT
This is a complaint filed under Sec.200 of Cr.P.C. for the offence punishable under Sec.138 of N.I.Act as against the accused.
2 C.C.No.50207-20152. The brief facts of the complainant's case are as under;
The complainant is a private limited company incorporated under the Indian Companies Act 1956 having its registered office at No.258, 1st Stage, Indiranagar, Bengaluru. The accused is a Subscriber to Ticker No.35 in the Chit group No.TH2 for amount of Rs.10,00,000/- which is payable at Rs.25,000/- p.m. for 40 months. In a auction held on 10.11.2012, the accused offered highest bid agreed to forgo a sum of Rs.3,00,000/- as a discount which is accepted by the complainant. The accused received the prized amount by offering guarantors for the due payment of entire future monthly installment. After receiving the prized amount, the accused was irregular in paying her future installments and there afterwards, she became defaulter in spite of several reminders. The accused issued a cheque bearing No.147763 dtd:21.11.2014 for Rs.3,45,000/- drawn on Canara Bank, Indiranagar Branch, Bengaluru in favour of the complainant towards discharge of balance due. The said cheque was presented for payment through M/s.Karur Vysya Bank which returned with an endorsement "Funds Insufficient". The legal notice was issued on 29.11.2014 requesting the accused to make payment of the cheque amount. The notice sent through RPAD was willfully refused by the accused and it was returned with an endorsement "Un claimed". Hence, the present complaint.
3 C.C.No.50207-20153. Upon recording the sworn statement, as there were sufficient materials to proceed against the accused, cognizance for the offence punishable under Sec.138 of N.I.Act was taken against the accused. The accused in pursuance of summons appeared before the court and enlarged on bail. The prosecution papers were furnished to the accused in compliance of Sec.207 of Cr.P.C.
4. The substance of accusation for the offence punishable under Sec.138 of N.I.Act read over and explained to the accused in Kannada. The accused having understood the same did not pleaded guilty and claims to be tried.
5. The recovery in-charge and GPA holder of complainant company was examined as P.W.1 and got marked Exs.P.1 to P.21. The incriminating circumstances appearing in the evidence of the complainant read over to the accused in compliance of Sec.313 of Cr.P.C. The accused having understood the same, denied and chosen to lead her evidence. The accused examined as D.W.1 and got marked Exs.D.1 and D.2.
6. The learned counsel for the accused has filed written notes of arguments apart from oral arguments.
7. The learned counsel for the complainant relied upon the following citations;
4 C.C.No.50207-20151. AIR 1962 MADRAS 326 (M.P. RM. Irulandi Mudaliar .Vs. Syed Ibrahim and others)
2. AIR 1998 Madras 23 (P.Talamalai Chetty .Vs. Rathinasamy)
3. AIR 2000 Karnataka 169 (H.Maregowda and etc., .Vs. Thippamma and others)
4. AIR 2001 Madras 216 (Mohamed Ali .Vs. Abdul Sinab)
5. (2008) 5 SCC 632 (Rajasthan State Electricity Board .Vs. Union of India and others)
6. (AIR 2005 Madras 90) (Natarajan .Vs. Marappa Gounder)
7. (2008) 7 SCC 655 (Mallavarapu Kasivisweswara Rao .Vs. Thadikonda Ramulu Firm and others)
8. (2001) 6 SCC 16 (Hiten P. Dalal .Vs. Bratindranath Banerjee)
9. 2007 (2) DCR 331 (V.K.Santhosh Kumar .Vs. P.B.James Baby)
10. 2007 (2) DCR 690 (A.B.M. Raja Sah .Vs. B.M.S. Srinivasa Sah)
11. 2008 (2) AIR Kar R 91 (Latha K. Nair .Vs. M/s.
Gold Mohar Foods & Feeds Ltd.)
12. (1999) 7 SCC 510 (K.Bhaskaran .Vs. Sankaran Vaidhyan Balan and Another) 5 C.C.No.50207-2015
8. The learned counsel for the accused relied upon the following citations;
1. 2012 (1) DCR 56 (Dr.Rajuma Baudha .Vs. State of Bihar & And.)
2. 1997 (4) Crimes 493 (Chittoor Distt. Co-
operative Marketing Society Ltd. .Vs. M/s.Sri Jyothi Trading Co. & Anr.)
3. I (1998) BC 217 (Chittoor Distt. Co-Op.
Market Society Ltd. .Vs. M/s.Sri.Jyothi Trading Co. and Anr.)
4. 2005 (1) Crimes 423 (Ravi Kumar & Anr .Vs. R.Ramalingam rep. by Power of Attorney)
5. 2010 (1) DCR 17 (Shri Jagdish G. Naik .Vs. Shri Chandrahas Amin & Anr.)
6. AIR 2009 (NOC) 397 = 2008 (5) AIR Bom.R-
605 (Hanumant R. Naik .Vs. Ajit Harmalkar)
7. 2012(2) DCR 461 (Smt.Shubra Mitra .Vs. Sri.Dipankar Saha & Anr.)
8. 2012(2) DCR 504 (Smt.Shobha .Vs. Gajanan S/o.Wasudeorao Joshi)
9. 2012(2) DCR 94 (Dilipbhai Chimanbhai Patel .Vs. Haji Shabbirbhai Hasanbhai Vora)
9. Heard the arguments of both the counsels and perused the materials.
6 C.C.No.50207-201510. The points that would arise for my consideration are;
1. Whether, the complainant proves that, he has complied the provisions of Sec.138(a) to 138(c) of N.I.Act, 1881?
2. Whether, the complainant proves that, the accused has issued Cheque as per Ex.P.2 in order to discharge the legally recoverable debt?
3. Whether, the complainant proves that, the accused has committed the offence punishable under Sec.138 of N.I.Act?
4. What Order?
11. By considering the oral and documentary evidence on record and because of my below discussed reasons, I answer the above points in the followings;
POINT NO.1 : In the Affirmative.
POINT NO.2 : In the Affirmative.
POINT NO.3 : In the Affirmative.
POINT NO.4 : As per final Order.
REASONS
12. POINT NO.1: The learned counsel for the accused in
his notes of arguments as well as during the arguments submitted that, the complaint is a premature one. It is his contention that, the legal notice sent by the complainant was returned on 17.12.2015 as per Ex.P.6 and complaint was filed on 26.12.2015 within 9 days hence, the complaint itself is not 7 C.C.No.50207-2015 maintainable under Sec.142 of N.I.Act. It is his argument that, Ex.P.1 Special Power of Attorney was given only for the purpose of conducting cases before the civil courts for the recovery of amount in Execution Cases only. The said Special Power of Attorney is not executed for conducting the cases punishable under Sec.138 of N.I.Act., before the criminal courts. Hence, the evidence given by P.W.1 is not tenable in the eyes of law.
13. Per-contra, the learned counsel for the complainant with reference to Ex.P.6 argued that, at the first instance on 01.12.2014, the notice was returned as "Intimation Delivered"
and subsequently on 17.12.2014, it was returned to sender as "Not claimed". It is his contention that, when intimation of notice was delivered on 01.12.2014, the cause of action for the complaint arises. Hence, he submitted that, the present complaint filed on 26.12.2014 is well within the period of limitation. The learned counsel in support of his contention pressed in to service ruling reported in; (1999) 7 SCC 510 (K.Bhaskaran .Vs. Sankaran Vaidhyan Balan and Another).
14. In view of the said rival contentions, it is to be seen whether, the complainant has complied the provisions of Sec.138(a) to (c) of N.I.Act.
15. As per Sec.138 of N.I.Act, the cheque has to be presented for payment within 6 months from its date or before expiry of 8 C.C.No.50207-2015 its validity whichever is earlier. Though, as per the circular of Reserve Bank of India No.RBI/2011-12/251 DBOD AML BC No.47/14.01.001/2011-12 dtd:04.11.2011, the cheque has to be presented within 3 months from its date. But, no suitable amendment to that effect in accordance with the above said circular is made to Sec.138 of N.I.Act. Hence, the period for presentation of cheque for payment is 6 months or before the expiry of its validity whichever is earlier. Secondly, the notice should be issued to the accused calling upon him to make payment of the cheque amount within 30 days from the date of receipt of information of dishonour of cheque. The accused should be asked to make payment of the cheque amount within 15 days from the date of receipt of the said notice. The complaint has to be filed within 30 days from the expiry of the above said 15 days period. In other words, the complaint has to be filed within 45 days from the date of service of the statutory notice.
16. In this case, the alleged cheque was dtd:21.11.2014 as could be seen from Ex.P.2 and it was returned with an endorsement "Funds Insufficient" on the very next day i.e., 22.11.2014. The legal notice was issued on 29.11.2014 calling upon the accused to make payment of the cheque as per Ex.P.4 and postal receipt as per Ex.P.5. The intimation was delivered on 01.12.2014 and subsequently, returned with an endorsement "not claimed" on 17.12.2014. It is to be noted 9 C.C.No.50207-2015 that, the accused has contended that, the complainant has filed the present complaint prematurely i.e., within 9 days from the date of return of the statutory notice Ex.P.6 but, this court taken cognizance for the alleged offence against the accused at the initial stage itself. The accused has not challenged the cognizance taken against her for the offence punishable under Sec.138 of N.I.Act at appropriate time. Now, she cannot contend that, the complaint is premature one. It is pertinent to note that, the object of giving notice is to bring to the knowledge of the accused as to the dishonor of the cheque and allowing him to make payment of the cheque amount without dragging in to the court. The Ex.P.6 reveals that, on 01.12.2014, the intimation of notice was given to the accused. Subsequently, it was returned as not claimed on 17.12.2014. It cannot be ruled out that, at the first instance when intimation was delivered on 01.12.2014, the intimation of notice was given to the accused. Subsequently, it was returned as not claimed on 17.12.2014. At the first instance when intimation was delivered on 01.12.2014, the accused had knowledge of the contents of the notice. The legal notice was issued at the address of the accused shown in Ex.P.8 which is a chit agreement and also the form No.1 at Ex.P.9. In this case there is no dispute that, accused entered in to agreement with the complainant as per Ex.P.8 and P.9. Even in Ex.P.9 also, address of the accused is same that of the address shown in the office copy of the legal notice. Hence, it 10 C.C.No.50207-2015 can be safely come to the conclusion that, the legal notice was issued at the correct address of the accused. The accused has not placed any materials to show that, she was not residing in the address mentioned in the statutory legal notice when it was issued. Under Sec.27 of General Clauses Act., where a notice is dispatched at the proper address, it is held to be sufficient. It is for the accused to rebut the said presumption. In this case also, the statutory legal notice was issued to the accused at her proper address which was returned with an endorsement "not claimed". The accused has not placed any materials before the court to show that, she was not resided in the address shown in statutory notice. Hence, she now cannot contend that, the notice was not properly served on her. If we reckon the period of limitation from the date of delivery of intimation i.e., from 01.12.2014, the complaint which is filed on 26.12.2014 is well within the period of limitation. Once, the court has taken the cognizance against the accused for the offence punishable under Sec.138 which is not being challenged by the accused, now she cannot contend that, the complaint is premature one.
17. It is to be noted that, though complaint was filed on 26.12.2014, the sworn statement of the complainant was recorded on 14.01.2015 on which date, the cognizance was taken against the accused for the offence punishable under Sec.138 of N.I.Act. Therefore, viewed from this angle also as 11 C.C.No.50207-2015 cognizance was taken on 14.01.2015, it cannot be held that, the complaint is premature one. Hence, it can be safely come to the conclusion that, complainant has complied provisions of Sec.138(a) to (c) of N.I.Act.
18. The learned counsel for the accused pressed in to service ruling reported in; 2012(1) DCR 56, Patna High Court (Dr.Rajuma Baudha .Vs. State of Bihar & Anr.). 1997 (4) Crimes 493, Andhra Pradesh High Court (Chittoor Distt. Co- operative Marking Society Ltd. .Vs. M/s.Sri Jyothi Trading Co. & Anr.), to contend that, the complaint filed without giving 15 days time was premature and not maintainable. As already I have stated, the statutory legal notice was firstly intimated on 01.12.2012 and accused has not challenged the cognizance taken by this court against her. Such being the case, if a mandatory period is reconed from the date of first intimation, the complaint is well within the period of limitation. Hence, the said rulings are not helpful to the case of the accused. Accordingly, I answer this point in the "Affirmative".
19. POINT NOS.2 & 3: The learned counsel for the accused during the course of arguments and also in his written notes of arguments submitted that, as per the case of the complaint, a sum of Rs.4,13,250/- was paid on 06.01.2013 by an account payee cheque bearing No.541865 drawn on Indian Overseas Bank, Indiranagar 12 C.C.No.50207-2015 Branch, Bengaluru, which was credited to the accused account on 09.01.2014 as per Ex.D.1, instead of Rs.7,00,000/- and complainant company has assured to pay a balance amount of Rs.2,86,750/- and at the time of paying Rs.4,13,250/- 2 blank cheques bearing No.147746 and 147746 were obtained from the accused as a security and also obtained blank signed papers which are later on filled-up and marked as Ex.P.12 to P.15. It is canvassed that, the accused has paid a sum of Rs.6,37,800/- as per Ex.D.1 and D.2. The complainant misused the Ex.P.2 cheque by filling up the fancy amount. It is argued that, there are no documents to show that, the due from the husband of the accused was adjusted to the account of the accused. Therefore, as the husband of the accused already paid a sum of Rs.35,000/- and Rs.1,15,000/- on 01.03.2012 as per Ex.P.18 and Ex.P.19, the accused is not liable to pay the cheque amount.
20. Per-contra, the learned counsel for the complainant argued that, the accused has executed Ex.P.7 to P.20 in connection with receipt of chit amount and she was irregular in repaying of the said amount for which she has issued cheque as per Ex.P.2. Further, it is argued that, as per Ex.P.7, the accused has signed to chit agreement and became a subscriber to ticket No.35 in the chit group 13 C.C.No.50207-2015 No.TH2 for Rs.10,00,000/- which is payable at Rs.25,000/- p.m. in 40 installments. It is also canvassed that, as per Ex.P.9, the accused has executed Form No.I along with sureties as per Ex.P.10. The accused was liable to pay a sum of Rs.4,75,000/- and as per Ex.P.12, Rs.7,00,000/- was paid to the accused on 06.01.2013. It is argued that, the accused has executed on demand promissory note as per Ex.P.13 promising to pay a sum of Rs.7,00,000/- with 3 guarantors and husband of the accused is one of the said guarantor. It is canvassed that, the accused has requested the complainant company to pay a sum of Rs.1,00,000/- by a bearer cheque and accordingly, the said amount was paid through cheque bearing No.541868 dtd:31.12.2013 for which entries found in Ex.P.17. It is also argued that, as per Ex.P.16, the accused became chronic defaulter from 29th installment and was due to pay a sum of Rs.18,750/- for December 2012 as per Ex.P.15 which was deducted as per the payment details at Ex.P.13. It is also argued that, the husband of the accused was subscriber to the chit group ST-1, chit No.23 against whom dispute bearing No.DRB2/Chits/1730/2009-10 for a sum of Rs.35,000/- as per Ex.P.18 was filed. It is also argued that, the husband of the accused failed to pay a balance chit 14 C.C.No.50207-2015 amount of Rs.1,15,000/-, a dispute bearing No.DRB2/CFS/379/2010-11 was filed for Rs.1,15,000/- as per Ex.P.19. It is also argued that, the accused on behalf of her husband requested the complainant company to sanction the chit amount of Rs.1,50,000/- from her non auctioned chit No.35 in group TH-2 and adjusted the same towards chit No.23 in group No.ST-I in dispute No.DRB2/Chits/1730/2009-10 in Execution No.2479/11 by allowing some considerations for waiving interest for the above 2 disputes. It is canvassed that, the accused through letter dtd:01.03.2012 requested the complainant company to adjust a sum of Rs.1,50,000/- and executed the receipt as per Ex.P.21. Hence, the learned counsel contended that, disputes filed against the husband of the accused closed on 01.03.2012 as per Ex.P.18 and Ex.P.19. Therefore, the cheque as per Ex.P.2 came to be issued by the accused for discharge of legally recoverable debt, which on presentation returned with an endorsement "Funds Insufficient" and inspite of legal notice, the accused failed to pay the cheque amount.
21. The learned counsel for the accused has argued that, Power of Attorney as per Ex.P.1 is only in respect of civil matters which authorize P.W.1 to represent the complainant company and there is no authorization to file 15 C.C.No.50207-2015 the present case against the accused. I have carefully perused the General Power of Attorney marked at Ex.P.1. As per Ex.P.1, the complainant company authorized Sri.B.Umakanth to represent it in legal proceedings. Though, there is no specific averment authorizing the P.W.1 to represent the complainant company in respect of cheque bounces case, but in page No.4 authorization was given to P.W.1 to represent the complainant company in respect of cases or proceedings pending at Bengaluru. Further, on careful perusal of contents of this General Power of Attorney, it is quite clearly mentioned that, the P.W.1 was authorized to represent the complainant company in connection with the suits, execution proceedings before any court which is pending at Bengaluru, to give evidence on its behalf in all pending cases or proceedings. Hence, it can be safely inferred that, the P.W.1 was authorized to represent the complainant company in cheque bounces cases.
22. The complainant has re-iterated the complaint averments by way of examination in chief and got marked Ex.P.1 to P.20. Ex.P.1 is a Power of Attorney, Ex.P.2 is alleged cheque, Ex.P.2(a) is the signature of the accused on the said cheque, Ex.P.3 bank return memo, Ex.P.4 is office copy of the legal notice, Ex.P.5 is postal receipt, un 16 C.C.No.50207-2015 served postal cover is at Ex.P.6 and un served notice is at Ex.P.6(a). Further, on 10.01.2017, the complainant has got marked the order passed by the Asst. Registrar dtd:19.01.2011 as per Ex.P.7 which was agreement as per Ex.P.8, Form No.I at Ex.P.9, Ledger account extract as per Ex.P.10 and 11, on demand promissory note dtd:06.01.2013 at Ex.P.2, detail of payment at Ex.P.13, on demand promissory note dtd:06.01.2013 at Ex.P.14, bank statement at Ex.P.15, installment pending details at Ex.P.16, statement of account of Indian Overseas Bank at Ex.P.17, dispute ledger extract dtd:15.04.2010, 10.01.2011 at Ex.P.18 and 19, ledger account extract dtd:01.12.2008 at Ex.P.20, receipt dtd:01.03.2012.
23. Per-contra, the accused examined herself as D.W.1 and deposed that, complainant has paid a sum of Rs.4,13,250/- instead of Rs.7,00,000/- and at the time of receiving Rs.4,13,250/-, 2 blank cheques were issued and she has paid regularly a sum of Rs.6,37,800/- and extra amount of Rs.2,24,550/-. It is the specific case of the accused that, Ex.P.2 cheque was misused by the complainant company by filling fancy amount of Rs.3,45,000/- which was blank and except the signature, all the contents are filled-up by the complainant. It is deposed by the accused that, she has not executed the 17 C.C.No.50207-2015 receipt dtd:06.01.2013 payment slip for Rs.7,00,000/-, promissory note on which her signature was taken when they were blank. It is the case of the accused that, as per her statement of account, she has paid a sum of Rs.5,09,800/- and bills for a sum of Rs.78,000/- in addition to a sum of Rs.50,000/- paid by way of cash. Hence, as per the accused, she has paid in total a sum of Rs.6,37,800/-. The accused has got marked the statement of account of Canara Bank as per Ex.D.1 and 17 receipts as per Ex.D.2.
24. Before appreciating the evidence on record, it is necessary to know the position of law in respect of the complaints filed under Sec.138 of N.I.Act. As per Sec.139 of N.I.Act., the presumption as to the existence legally recoverable debt has to be raised once the provisions of Sec.138(a) to (c) are complied with. The burden to rebut the said presumption is on the accused. The accused has to rebut the said presumption based on the "preponderance of probabilities". Unlike the case of the prosecution, the accused need not prove his defense beyond reasonable doubt. It is sufficient if, the accused is able to raise a probable defense which is capable of being believed. The accused for that, purpose even need not step in to witness box and it is sufficient if he is able to 18 C.C.No.50207-2015 establish his defense based on the materials produced by the complainant itself. However, it is needless to say that, the ultimate burden to rebut the presumption under Sec.139 is on the accused. This position of law is held by the Hon'ble Apex Court in ruling reported in; AIR 2010 SC 1898 between Rangappa .Vs. Mohan. Earlier, as per the ruling reported in; Krishna Janardhan Bhat .Vs. Dattatreya G. Hegde, the Hon'ble Apex Court was of the opinion that, the existence of legally recoverable debt is not a matter of presumption and it has to be proved by the complainant. But, said position was clarified by the Hon'ble Apex Court in; AIR 2010 SC 1898 between Rangappa .Vs. Mohan's case holding that, the existence of legally recoverable debt is a matter of presumption and it has to be rebutted by the accused.
25. Keeping in view the above said position of law, let me appreciate the evidence on record.
26. It is not in dispute that, the accused was a subscriber to chit bearing No.TH2 for Rs.10,00,000/- as could be seen from chit agreement at Ex.P.8 dtd:16.02.2011. The accused has also executed Form No.I mentioning surety and security proposal as per Ex.P.9 for a sum of Rs.10,00,000/-. The surety No.1 is none other 19 C.C.No.50207-2015 than the husband of the accused as could be seen from Ex.P.9. As per the ledger account extract at Ex.P.10, the bid amount was Rs.10,00,000/-. Further, Ex.P.10 reveals that, a sum of Rs.4,13,250/- was paid to the accused through cheque bearing No.541865 and Rs.1,00,000/- was paid through cheque bearing No.541868. Further, the details of amount are stated in Ex.P.10. As per the ledger extract, complainant's company commission was Rs.50,000/-, auction discount was Rs.2,50,000/-, custody charges was Rs.4,000/- chit advance was Rs.1,82,750/- apart from the payment of Rs.1,00,000/- and 4,13,250/- through cheques as stated above. The said details of payment are also reflected in Ex.P.12 and P.13 which are the receipts and details of payment. Further, the accused has executed Ex.P.14 on demand promissory note for Rs.4,75,000/- on 06.01.2013 for which the husband of the accused is also surety. In statement of account of Indian Overseas Bank as per Ex.P.17, the amount paid to the accused by way of cheque bearing No.541868 for Rs.1,00,000/- and cheque bearing No.541865 for Rs.4,13,250/- is reflected and it is debited to the complainant's company account. The Ex.P.16 is a statement of pending installment details which reveals that, from July 2013 to June 2014, the accused was in 20 C.C.No.50207-2015 due of Rs.2,72,316/-. Further, the ledger account extract Ex.P.19 of husband of the accused reveals that, he has also participated in a bid and as he became defaulter, recovery proceedings were initiated as could be seen from the Ex.P.18 in dispute No.DRB2/Chits/1730/2009-10. Further, as per Ex.P.20, the husband of the accused was in due of Rs.84,900/- and the said due amount was transferred to dispute register as could be seen from Ex.P.18 and Ex.P.19. The accused has executed the receipt as per Ex.P.21 in respect of a sum of Rs.1,15,000/- on 01.03.2012 in respect of book No.35, chit group No.TH2. Though the accused has stated that, her signature were obtained on these documents when they were blank but, it is to be noted that, accused is not a illiterate lady and she is a principal of Driving School at Indiranagar having studied up to SSLC as admitted by her in cross-examination. Moreover, the accused has admitted her signature on Ex.P.2 alleged cheque and also there is no dispute that, Ex.P.2 cheque belongs to the accused. Under such circumstances, it is the burden on the accused to rebut the presumption available under Sec.139 of N.I.Act as to the existence of legally recoverable debt for discharge of which the alleged cheque was issued. The accused does not dispute that, she was a subscriber 21 C.C.No.50207-2015 of complainant company in respect of ticket bearing No.35 chit book No.TH2 Indiranagar for chit amount of Rs.10,00,000/-. The chit agreement is marked at Ex.P.8. It was suggested to D.W.1 that, she has received Rs.7,00,000/- after deducting Rs.3,00,000/- as discount on 06.01.2013. It is also suggested to D.W.1 that, her husband was due for an amount of Rs.35,000/- and Rs.1,15,000/- which is adjusted from the chit of Rs.7,00,000/-. It is also suggested to D.W.1 that, as per Ex.P.15 she was due of Rs.18,750/-. The D.W.1 admitted that, she has received Rs.4,13,250/- from the complainant by way of cheque. It is suggested to D.W.1 that, as per letter dtd:01.03.2012, she requested complainant company to adjust her husband's due of Rs.1,50,000/-. She was confronted that Ex.P.21 which is a receipt executed by the accused. Though, accused stated that, Ex.P.21 was blank when she signed to it. But, Ex.P.19 reveals that, husband of the accused was in due of Rs.1,50,000/-. Even as per Ex.P.18, the husband of the accused was in due of Rs.35,000/- for which dispute No.DRB2/Chits/1730/2009-10 was filed and account of the husband of the accused was closed. It is to be noted that, the accused has executed the receipt as per Ex.P.21 for having received Rs.1,50,000/- on 01.03.2012.
22 C.C.No.50207-2015Though, accused stated that, Ex.P.21 was blank when she has signed. But, the accused being educated it cannot be expected that she will blindly sign the blank documents. It is also pertinent to note that, as per Ex.P.12 the accused received in total Rs.7,00,000/- from the complainant company for which she has issued the receipt at Ex.P.12. Further, the Ex.P.13 reveals the details of payment of chit amount. Moreover, the accused has also executed on demand promissory note on 06.01.2013 as per Ex.P.14 agreeing her liability to pay a sum of Rs.4,75,000/-. These are all the documents clearly reveals that, the accused was in due of the cheque amount to the complainant company. The accused has produced the statement of account of Andhra Bank to show that, she has paid bid amount to the complainant and also 17 receipts as per Ex.D.2. On careful perusal of these receipts, it is quite clear that, accused in total has paid a sum of Rs.66,000/- only. Though, accused has stated that, she has paid a sum of Rs.50,000/- in cash but, there is no entry to that effect in Ex.D.1. Therefore, the complainant with the help of Ex.P.1 to P.21 established its case that, the accused in order to repay the due amount of Rs.3,45,000/- issued a cheque as per Ex.P.2 which on presentation returned with an 23 C.C.No.50207-2015 endorsement "Funds Insufficient" and inspite of the legal notice, she has not paid the cheque amount.
27. The learned counsel for the accused pressed in to service rulings reported in; 2005 (1) Crimes 423 (Ravi Kumar & Anr .Vs. R.Ramalingam rep. by Power of Attorney) contended that, Power of Attorney Holder is not a holder in due course cannot present the complaint. But, in this case, the complainant company has executed the GPA in favour of the P.W.1 to present the complaint and he was authorized to represent the complainant company. The another ruling relied upon by the learned counsel for the accused reported in; 2010 (1) DCR 17 (Shri Jagdish G. Naik .Vs. Shri Chandrahas Amin & Anr.). The Hon'ble High Court of Bombay held that, the accused is entitled for acquittal when he is successful in rebutting the presumption and also when he successfully proves that, no consideration was passed in respect of dishonor of cheque. There is no dispute as to the above said fact. But, in this case, the accused has not rebutted the presumption available in favour of the complainant under Sec.139 of N.I.Act and she has signed the on demand promissory note as per Ex.P.14 in respect of the due amount. Therefore, the said ruling is not applicable to the case on hand. Further, the learned counsel has pressed in to service another ruling reported in; 2012(2) DCR 461 (Smt.Shubra Mitra .Vs. Sri.Dipankar Saha & Anr.) where, the Hon'ble High 24 C.C.No.50207-2015 Court of Calcutta where the cheque is issued as collateral security and not for repayment of the loan, Sec.138 is not attracted. But, in this case, the accused failed to prove that, the alleged cheque was issued as collateral security. Hence, the said ruling cannot be made applicable to the case on hand. The learned counsel for the accused also pressed in to service rulings reported in; 2012(2) DCR 504 (Smt.Shobha .Vs. Gajanan S/o.Wasudeorao Joshi) wherein, the Hon'ble High Court of Bombay held that, if the accused is able to brought on some record, the materials in consonance with his innocence which appears to be true and reasonable and acceptable one in rebuttal of statutory presumption, entitled for acquittal. There is no dispute as to the said position of law. But, in this case, the accused has not raised a defense which is probable one. Therefore, the said ruling cannot be made applicable to the case on hand. Further, in another ruling relied upon by the learned counsel for the accused reported in; 2012(2) DCR 94 (Dilipbhai Chimanbhai Patel .Vs. Haji Shabbirbhai Hasanbhai Vora) The Hon'ble High Court of Gujarat held that, the complainant failed to prove the existence of legally recoverable debt, the accused is entitled for acquittal. But, in this case, the complainant is able to establish that, accused has issued Ex.P.1 cheque for discharge of legally recoverable debt which came to be dishonored for "Funds Insufficient". Hence, the said ruling cannot be made 25 C.C.No.50207-2015 applicable to the case on hand as tit stands on a different set of facts.
28. Though, the accused has taken up a contention that, she has signed 2 blank cheque, promissory note and receipts but, Sec.20 of N.I.Act, even authorizes the complainant to fill the same and present it for payment. Therefore viewed from that angle also, the defense of the accused cannot be believed. Therefore, the only conclusion which can be drawn is that, the accused by issuing cheque as per Ex.P.2 for discharge of legally recoverable debt and on its dishonor committed the offence punishable under Sec.138 of N.I.Act. Accordingly, I answer both point Nos.2 and 3 in the Affirmative.
29. POINT NO.4 : While discussing point Nos.2 and 3 this court has come to the conclusion that, complainant has proved his case that, accused has committed the offence punishable under Sec.138 of N.I.Act, which is punishable with fine of double the Cheque amount or with simple imprisonment for a term which may extend to 2 years or with both. Considering the facts, circumstances, year of transaction this court is of the view that, the accused should be sentenced to pay a fine of Rs.4,05,000/- in default she shall under go simple imprisonment for a period of 10 months. out of the said fine amount, a sum of Rs.5,000/- shall be defrayed in 26 C.C.No.50207-2015 favour of the State as a prosecution expenses and remaining fine amount of Rs.4,00,000/- shall be paid to the complainant as a compensation under Sec.357(1) of Cr.P.C. Hence, I pass the following;
ORDER Acting under Sec.255(2) of Cr.P.C. the accused is hereby convicted for an offence punishable under Sec.138 of Negotiable Instrument Act and ordered to pay fine of Rs.4,05,000/-. In default, accused has to undergo Simple Imprisonment for 10 months.
Out of the said fine amount, a sum of Rs.5,000/- shall be defrayed in favour of the State as a prosecution expenses and acting under Sec.357(1) of Cr.P.C. a sum of Rs.4,00,000/- shall be paid as a compensation to the complainant.
27 C.C.No.50207-2015The bail bond executed by the accused stands cancelled and office is directed to supply free copy of the Judgment to the accused.
(Dictated to the Stenographer, transcript thereof is corrected and then pronounced by me in the open court on this the 25th day of April, 2017) (SATHISH J. BALI), LVII ACMM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : B.Umakanth
2. Documents marked on behalf of complainant:
Ex.P.1 : Notarized copy of special power of attorney dtd:17.10.2014 Ex.P.2 : Cheque bearing No.147763 dtd:21.11.2014 Ex.P.2(a) : Signature of the accused Ex.P.3 : Bank Return Memo dtd:21.11.14 Ex.P.4 : Legal Notice dtd:29.11.2014 Ex.P.5 : Postal Receipt Ex.P.6 : Returned Postal Cover Ex.P.6(a) : Legal Notice Ex.P.7 : Order passed by the Asst.
Registrar of Chit dtd:19.01.2011
Ex.P.8 : Chit Agreement dtd:16.02.2011
Ex.P.9 : Form No.1
28 C.C.No.50207-2015
Ex.P.10 : Ledger Account Extract - Page
No.35
Ex.P.11 : Ledger Account Extract - Page
No.36
Ex.P.12 : On demand promissory note
dtd:06.01.2013
Ex.P.13 : Details of payment
dtd:06.01.2012
Ex.P.14 : On demand promissory Note
dtd:06.01.2013
Ex.P.15 : Bank Statement
Ex.P.16 : Pending Installment Detail
Ex.P.17 : Bank Statetment of Indian
Overseas Bank (2 Pages)
Ex.P.18 : Dispute Ledger Extract
dtd:15.04.2010
Ex.P.19 : Dispute Ledger Extract
dtd:10.01.2011 (Page No.149)
Ex.P.20 : Ledger Account Extract
dtd:01.12.2008 (Chit No.29)
Ex.P.21 : Receipt dtd:01.03.2012
3. Witnesses examined on behalf of Accused:
D.W.1 : Smt.Sheela M.
4. Documents marked on behalf of Accused:
Ex.D.1 : Statement of account of Canara
Bank
Ex.D.2 : 17 Receipts
(SATHISH J. BALI),
LVII ACMM, BENGALURU.