Bangalore District Court
Dr. K.C. Chennappa vs Smt. Radha on 13 June, 2018
IN THE COURT OF THE XII ADDL. CHIEF METROPOLITAN
MAGISTRATE, AT BENGALURU
Dated this the 13th Day of June 2018
Present: Sri. Rajkumar .S.Amminbhavi., B.Com., LLB (Spl)
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
C.C.No. 21668/2016
Complainant: Dr. K.C. Chennappa
S/o. Chennappa
Aged about 64 Years
R/at. No.242, 13th Main
Banashankari 1st Stage
50 feet Road
Hanumanthanagar
Bengaluru-560 050.
(By M.krishne Gowda., Adv)
- Vs -
Accused: Smt. Radha
W/o. Ramesh
R/at. No.40, Venkateswaranilaya
5th Cross, A Sector
Vinayaka Block
Near Police Station
Amruthnagara
Bengaluru-560 092.
And also at :-
No.1, 5th Cross
Kilari Road
Chickpet
Bengaluru-560 053.
(By. K.Mohan., Adv)
Offence complained of: U/s. 138 of the Negotiable
Instruments Act
2 CC No.21668/2016
Plea of the accused: Pleaded not guilty
Final Order: Accused is convicted
Date of order: 13.06.2018
******
JUDGMENT
This is a complaint filed by the complainant under Sec.200 of Cr.PC 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, both the complainant and accused are known to each other since from several years. On account of well acquainted with the complainant, the accused has approached the complainant and requested hand loan an amount of Rs.8,00,000/- during the month of July 2014 for construction of building at Kilari Road, Bengaluru and accordingly, considering the request of the accused and on account of good faith and believe the words of the accused, the complainant has advanced an amount of Rs.8,00,000/- to the accused by way of cash out of the amount received from his retirement benefit and on the same day, the accused has agreed and undertaken that, she would repay the said amount within six months from the date of borrowed. After lapse of stipulated period 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.418517, dated: 14.05.2016 for a sum of 3 CC No.21668/2016 Rs.8,00,000/- drawn on State Bank of Mysore, SBM Colony Branch, Bengaluru in favour of the complainant and assured that, the said cheque would be honoured on its presentation and as per the assurance made by the accused, the complainant has presented the said cheque for encashment through his banker two times i.e., Karnataka Bank Limited, Srinagar Branch, Bengaluru, but it was dishonoured with an endorsement as "Funds Insufficient" and thereafter, the complainant has informed the said fact to the accused, but the accused did not responded the same. Hence, the complainant had got issued the legal notice on 18.07.2016 through his counsel by RPAD calling upon him to repay the said borrowed loan amount within 15 days from the date of receipt of this legal notice two address of the accused and it was returned one postal envelope with an endorsement that, "No such persons" and another postal envelopes returned with an endorsement intimation delivered it amounts to deemed service of the legal notice. Despite of service of the legal notice, the accused neither repaid the borrowed loan amount nor reply the legal notice. 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, 4 CC No.21668/2016 pursuant to the summons the accused had appeared before this Court through his counsel and enlarged on bail. The substance of accusation was recorded and read over to the accused in his vernacular. He pleaded not guilty. Hence, claims for trail.
4. In order to prove the case of the complainant got himself examined as PW.1 & got 20 documents marked as Ex.P.1 to Ex.P.20 and PW-1 has been fully cross-examined and during the course of his cross-examination, the counsel for the accused has confronted the Xerox copy of the complaint filed by the complainant before the CCB police and same has been admitted by the PW-1 and same are marked as Ex.D1 and in support of his case, he has got examined one witness as PW-2 and the statement of accused under Section 313 of Cr.P.C., was recorded and the accused herself examined as DW-1 and none of the documents marked as exhibits in support of her case except Ex.D1 marked during the course of cross of PW-1 and after completion of the defence evidence 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.418517, dated:14.05.2016 for Rs.8,00,000/- drawn on State Bank of Mysore, SBM Colony Branch,, Bengaluru for discharge of the amount and when the said cheque presented for encashment, it was 5 CC No.21668/2016 dishonoured with an endorsement "Funds Insufficient" and after issuance of the legal notice he 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 20 documents namely, cheque which is marked as Ex.P1, the signature of the accused therein which are marked as Ex.P1(a), bank counter-foil issued by the complainant's bankwhich are marked as Ex.P2, the bank endorsement issued by the banker which is marked as Ex.P3, the bank counter-foil which is marked as Ex.P4, the bank endorsement which is marked as Ex.P5, the office copy of the legal notice which is marked as Ex.P6, four postal receipt which are marked as Ex.P7 to Ex.P10, four returned postal cover which are marked as Ex.P11 to Ex.P14 and Ex.P11 opened in the open Court and therein contain the copy of the legal notice which is marked as Ex.P11(a), the statement 6 CC No.21668/2016 made by the accused before the CCB police station which is marked as Ex.P15, statement of account pertain to the complainant bank account which is marked as Ex.P16, the copy of the property tax of the accused which is marked as Ex.P17, the original copy of the tax paid receipt which is marked as Ex.P18, the copy of the office notice issued by the complainant's hospital viz., Raj Vakkaligara Sangha which is marked as Ex.P19, the letter issued by the banker with respect to credit his retirement benefit and same is marked as Ex.P20.
9. During the course of cross of PW-1 he has deposed that, he was served as Professor in Kims Hospital and he was retired from his service. He deposed that, house of the accused was situated in the front of his father-in-law's house at Kilari Road, Bengaluru and thereby, both of them are very well known to each other for the last 25 years and both of them were visited their respective houses often and often and now for the last 2 years the accused has shifted her house Amruthnagar, Bengaluru. It is true that, residential address of the accused situated at Amruthnagar, Benglauru as mentioned in the cause title of the complaint is true and correct and the said Amruthnagar is part of the Vinayakanagar, Bengaluru. He deposed that, as per the instruction made by him, his counsel had issued legal notice to the both the address of the accused as per the address mentioned in the cause title of the complaint. He deposed that, prior to advancement of the loan in question on 7 CC No.21668/2016 16.08.2014 about six month she was demanded and he had advanced the loan in question by way of cash as he was retired from his service and he was received the retirement benefit an amount of Rs.10,00,000/- and out of the retirement amount, he was advanced loan in question to the accused in the presence of his friend by name Nanjundaswamy and husband of the accused by name Ramesh and he will examine one Nanjundeaswamy as witness as he was present at the time of advancement the loan in question to the accused. He deposed that, he was not obtained any documents from the accused at that time of advancement the loan in question. He deposed that, there is no impediment to advance the loan in question by way of DD or cheque, but the accused has demanded for advancement of the loan in question by way of cash and thereby, he was advanced the loan in question by way of cash and she was agreed and undertaken that, she would repay the said amount within six months and after lapse of repeated request and demand made by him, but the accused did not repaid the loan in question and to that effect, he was lodged the complaint before the CCB police and based on the complaint lodged by him, the police have summoned the accused person and recorded her statement as per the Ex.P15. He denied the suggestion that, the complainant has taken the cheque in question forcibly in the CCB police station and after filled the contents of the cheque in question and same has been misused and filed false complaint against the accused. He deposed that, he was income tax assessee. He deposed that, 8 CC No.21668/2016 he was advanced the loan in question out of the amount received from his retirement benefit and thereby, question of mention the advancement the loan in question in his income tax returns does not arise. He denied the suggestion that, he was only advanced loan amount of Rs.1,00,000/- on 15.09.2013 and he has obtained the cheque in question in the CCB police station as forcibly in the month of March 2016. He denied the suggestion that, he was not having sufficient financial capacity for advancement the loan in question to the accused.
10. During the course of complainant evidence, the complainant in support of his case, he has got examined one witness as PW-2 and PW-2 in his examination-in-chief, he has categorically contended that, he know the complainant for the last 30 years. He deposed that, the complainant who was working as doctor by profession and he used to visit to the hospital of the complainant for taking treatment and thereby, he know the complainant. He deposed that, the complainant has advanced the loan in question to the accused on 14.08.2014 by way of cash, since the accused was in need of money for renovation of her old house situated at Kilari Road, Bengaluru in his presence.
11. During the course of cross PW-2 he has deposed that, the complainant was running private clinic under the name and style as "Sri Venkateshwara Clinic" situated at Banashankari. He deposed that, he know the accused for the 9 CC No.21668/2016 last 2 years. He deposed that, earlier the accused was residing Kilari Road, Bengaluru and now she was residing in Amruthangar, Bengaluru. He deposed that, the complainant has advanced the loan in question to the accused on 14.08.2014 by way of cash. He denied the suggestion that, at the instance of the present complainant, he has deposing falsely before this Court as per the say of the complainant.
12. During the course of defence evidence, the accused herself examined as DW-1 by filing a chief affidavit and wherein, she has categorically stated that, till 2012 she was residing at Kilari Road, Bengaluru and thereafter, she was shift her house to Seshadripuram and from 2014 she was residing in the address mentioned in her examination-in- chief. She deposed that, she was borrowed the loan amount of Rs.1,00,000/- on 15.09.2013 from the complainant and the complainant was very fully aware of the residential house situated at Sheshadripuram and Amruthahalli and accordingly, he used to visit her house often and often and subsequently, due to some unavoidable financial stringency, she could not repaid the borrowed loan amount of Rs.1,00,000/- to the complainant and to that effect, the complainant has lodged the complaint before the CCB police and based on the complaint lodged by the complainant, the CCB police have summoned her and accordingly, she was went to the CCB police station and wherein, the complainant has forcibly took the cheque in question from her in the police station and also the CCB police have took her signature on 10 CC No.21668/2016 the white paper and thereafter, they have typed as per their convenience. Hence, for all other reasons, she prays for to acquit her from the case in hand.
13. During the course of cross of DW-1 she has deposed that, she being a household women and she was not having any source of income and her husband was working as cashier in the Hotel. She do not know what was income of her husband. She deposed that, she had one son and who was completed MBA and he was working in private company as a Interior designer and she do not know how much amount getting her son from his work. It is true that, her residential house situated at Amruthanagar, Bengaluru and which was standing in the name of her husband. It is true that, she is having site which was purchased in her name in the year 2016 itself situated at Amruthanagar, Bengaluru. She deposed that, she had got constructed the house at Amruthanagar, Bengaluru in the year 2013-14. It is true that, the complainant known to her for the last 25 years, since the complainant's father-in-law house was situated in the front of her house when she was residing in Kilari Road, Bengaluru and thereby, herself and the complainant were visit to their respective houses often and often. She denied the suggestion that, the complainant has advanced an amount of Rs.8,00,000/- out of the amount received from his retirement benefit and she was agreed to repay the said amount within six months and even after lapse of stipulated she had failed to repay the borrowed the loan in question and 11 CC No.21668/2016 subsequently, the complainant has repeated request and demanded to her for repayment of the loan in question by way of telephonic call as well as personally. It is true that, the Court issued the summons was duly served upon her as per the address mentioned in the cause title of the complaint. It is true that, Ex.P1 cheque belonging to her own bank account cheque and signature found on the Ex.P1(a) is her own signature, but she has deposed that, the complainant has took away the cheque in question from her in the CCB police Station. It is true that, she was borrowed the loan amount from State Bank of India for construction of house situated at Amruthanagar, Bengaluru, but she do not know whether how much amount she was borrowed the loan from the aforesaid bank. It is true that, she was not having monthly income of Rs.1,00,000/- prior to construction of her house. It is true that, her son was owned Car and two wheeler motor cycle it is worth more than Rs.1,00,000/-. She denied the suggestion that, since she was residing in the house constructed by her at Amruthanagar and only with an intention to escape from her liability she was deposing falsely before this Court.
14. On perusal of the averments made in the complaint and evidence of the complainant along with coupled with the documents produced by the complainant. There is no dispute that, both the complainant and accused are very well known to each other. There is no dispute that, prior to filing of the present complaint, the complainant has complied all the necessary ingredients under Section 138 of N.I.Act., and 12 CC No.21668/2016 receipt of the legal notice, the accused has failed to gave reply notice. There is no dispute that, Ex.P1 cheque is belonging to his own bank account cheque and the signature found on the Ex.P1(a) is his own signature. There is no dispute that, the complainant was served in KIMS hospital as professor and he was retired from his service in the year 2013 and to that effect, he was received retirement benefit amount of Rs.10,00,000/- and substantiate the same, he has produced the Ex.P19 and Ex.P20.
15. It is case of the complainant is that, he know the accused and on account of well acquainted with each other, the accused has approached him and requested hand loan amount of Rs.8,00,000/- and accordingly, considering the request of the accused on believing the words of the accused, the complainant has advanced the loan amount of Rs.8,00,000/- to the accused out of the amount received from his service as he was retired and at that time, the accused has agreed and undertaken that, she would repay the loan in question within a period of six months and after lapse of stipulated period, he was demanded for repayment of the borrowed loan amount and at that time, the accused has issued Ex.P1 for discharge the loan amount and accordingly, the complainant has presented the said cheque for encashment through his banker and same has been dishonoured with an endorsement as "Funds Insufficient"
and the said fact has been informed by the complainant to him, but the accused has not responded the same and 13 CC No.21668/2016 thereby, the accused has issued legal notice to the accused to the both the address of the accused and they were returned with an endorsement as "No such persons and Door locked information delivered" it amount to deemed service of the legal notice after receipt of the legal notice, the accused has failed to repay the borrowed loan amount nor gave reply notice and thereby, the complainant has filed the present complaint against the accused well within time. Further, in support of his case, he has got examined one witness as PW-2 for the purpose that, he was advanced the loan in question to the accused in the presence of PW-2 and accordingly PW-2 has been corroborate the version of the complainant.
16. On the other hand, the accused has taken specific defence during the course of cross of PW-1 and during the course of her evidence that, she was only borrowed the loan amount of Rs.1,00,000/- from the complainant and subsequently, due to some unavoidable financial stringency, she was failed to repay the borrowed the amount of Rs.1,00,000/- to him and subsequently, the complainant has lodged the complaint before CCB police station and pursuant to the complaint lodged by him, the police have called her and in the CCB police station, the complainant has forcibly took the cheque in question from her and same has been misused and filed false complaint against her and further, she has taken specific defence that, when the CCB police have recorded her statement and wherein she had specifically stated that, she was only borrowed the loan amount of 14 CC No.21668/2016 Rs.6,000,000/- from the complainant agreeing to pay interest at the rate of 2% per month and subsequently, he was failed to repay the interest amount as well as principle an amount of Rs.6,00,000/- as per the Ex.P15 which was recorded by the CCB police, but to substantiate the same, she has not produced any iota of documents except oral testimony. Further, the defence taken by the accused during the course of cross of PW-1 and the during the course of her defence evidence are in-consistent one. Therefore, the alleged defence taken by the accused is not sustainable.
17. If really, she was not at all borrowed the loan in question from the complainant and she was not issued cheque in question to the complainant for discharge the loan in question and further, she was only borrowed the loan amount of Rs.1,00,000/- on 15.09.2013 from the complainant and subsequently, due to some unavoidable financial stringency, she was failed to repay the borrowed the amount of Rs.1,00,000/- to him and subsequently, the complainant has lodged the complaint before CCB police station and pursuant to the complaint lodged by him, the police have called her and in the CCB police station, the complainant has forcibly took the cheque in question from her and same has been misused and filed false complaint against her and further, she has taken specific defence that, when the CCB police have recorded her statement and wherein she had specifically stated that, she was only borrowed the loan amount of Rs.6,000,000/- from the 15 CC No.21668/2016 complainant agreeing to pay interest at the rate of 2% per month and subsequently, she was failed to repay the interest amount as well as principle an amount of Rs.6,00,000/- as per the Ex.P15 which was recorded by the CCB police, to substantiate the same, she ought to have challenged the cognizance taken by this Court, she ought to have issued reply notice, she ought to have lodged either criminal complaint or private complaint against the complainant, she ought to have gave stop payment instruction to his banker. Therefore, non-performing of the aforesaid legal proceedings that itself, it is very much fatal to the alleged defence set-up by the accused during the course of PW-1 and the during the course of her evidence. Therefore, an adverse inference is to be drawn that, the accused was borrowed the loan in question from the complainant and for discharge the loan in question she was issued cheque in question to the complainant. Further, with respect to the source of income, the complainant has produced his statement of bankaccount and which is marked as Ex.P16. Therefore, on perusal of the Ex.P16 it can be presumed that, the complainant was having sufficient source of income for the advancement the loan in question to the accused and the accused is having two residential house situated at Kilari Road, Bengaluru and Amruthnagar, Bengaluru and the said house properties valuable for crores together and her husband was and is working as Cashier in hotel which is pertain to one of her relative and her son was MBA graduate and he was and is working in private company and to that effect, he was getting 16 CC No.21668/2016 handsome salary and so also her son having one Car and one two wheeler bike and these are valuable for laksh together. Therefore, it can presumed that, the complainant has advanced the loan in question to the accused after he came to know knowledge of fact that, the accused was having capacity for repayment of the loan in question.
18. During the course of arguments, the counsel for the complainant has relied the some citations reported in (i) AIR 2016 SC 740 - Don Ayengia V/s. The State of Assam and another (ii) AIR 2016 SCC 744 - Ram Saran Varshney and others V/s. State of Uttar Pradesh and another (iii) 2016 (2) AKR 424 - M.R. Achut Kumar V/s. Shekhar (iv) 2012 (2) DCR 441 - Mohan Lal V/s. State of Uttarakhand and others. On other hand the counsel for the accused has relied the some citation reported in (i) ILR 2009 KAR 1633 - Kumar Exports V/s. Sharma Carpets (ii) ILR 2014 KAR 6572 - H.Manjunath V/s. A.M Basavaraju. Further, all the citations which are filed by the respective counsel for the parties to the case hand are perused the same and I have gone through the case in hand is to be considered by conduct the parties to the proceedings.
19. It can be presumed that, the accused has issued the Ex.P1 to the complainant knowing fully well without having sufficient funds in his bank account with an intention to defeat the claim of the complainant. It can be presumed that, no any ordinary prudent man will issue signed blank cheque 17 CC No.21668/2016 to any other persons without having monetary transaction between themselves. On perusal of the Ex.P1 there is no any ambiguity. The complainant has proved his case by adducing cogent and corroborative evidence as per provision under Section 138 of N.I.Act., on other hand, the accused has failed to rebut his defence by adducing cogent and corroborative evidence as per the provision of Under Section 139 of N.I.Act., Hence, the probability of the preponderance is higher on the side of the complainant, rather than the accused.
20. 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 cheque and to lend the credibility to the commercial transaction. Therefore, in this case also the accused knowing fully he 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. Since the present complaint is summary trial and quasi-criminal in nature, it is like recovery proceedings and punishment is fine or in default of it simple imprisonment.
21. 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 18 CC No.21668/2016 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.
22. 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.8,05,000/-. In default of payment of said
fine amount, the accused shall undergo simple imprisonment for six months.
Further, ordered that, out of the fine amount of Rs.8,00,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and remaining an amount of Rs.5,000/- shall be remitted to the state as fine.
The bail bond and surety bond of the accused stands cancelled.
19 CC No.21668/2016Free 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 13th day of June 2018).
(Rajkumar.S.Amminbhavi) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the complainant:
PW.1 K.C. Chennappa PW.2 B.Nanjunda Swamy
List of documents exhibited on behalf of the complainant:
Ex.P.1 Cheque
Ex.P.1(a) Signature of the accused
Ex.P.2 & 3 Two bank counter-foil
Ex.P.4 & 5 Two bank endorsements
Ex.P.6 Office copy of the legal notice
Ex.P.7 to 10 Four postal receipts
Ex.P.11 to 14 Four returned RPAD covers
Ex.P.11(a) Ex.P11 therein contain copy of the legal
notice
Ex.P.15 Statement made by the accused before the
police station
Ex.P.16 Statement of account
Ex.P.17 Xerox copy of property tax system
Ex.P.18 Original copy of tax paid receipt
Ex.P.19 Office Note
Ex.P.20 Letter issued by the bank
20 CC No.21668/2016
List of witnesses examined on behalf of the accused :
DW-1 Radha List of documents exhibited on behalf of the accused :
Ex.D1 Complaint XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
21 CC No.21668/201613.06.2018.
Complainant : MKG Accused : KM 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.8,05,000/-. In default of payment of said
fine amount, the accused shall undergo simple imprisonment for six months.
Further, ordered that, out of the fine amount of Rs.8,00,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and remaining an amount of 22 CC No.21668/2016 Rs.5,000/- shall be remitted to the state as fine.
The bail bond and surety bond of the accused stands cancelled.
Free copy issued to the accused.
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
23 CC No.21668/2016Heard Inference 24 CC No.21668/2016