Bangalore District Court
Mrs. Srimathi Narayan vs Dr. R.K. Farhana on 27 September, 2019
IN THE COURT OF XXII ADDL. CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU
DATED THIS THE 27TH DAY OF SEPTEMBER, 2019
PRESENT
SMT. JYOTHISHREE RAMAGOWDA PATIL
B.A., LL.B., (Spl)
XXII ADDL. CMM., BENGALURU.
CASE NO. C.C.NO.28026/2017
COMPLAINANT Mrs. Srimathi Narayan
W/o Late Mr. S.K. Narayan,
Aged about 84 years,
Through her Specifically. POA Holder
Mr. Kathirvel, Sr. Ops. Executive,
TTK Property Services Pvt. Ltd.,
(Home Shikari Division)
Ferns Icon, Ground Floor,
Outer Ring Road,
Marathahalli,
Bengaluru - 560 037.
ACCUSED Dr. R.K. Farhana
D/o. W/o. Rasheed Khan,
Aged about - Major,
R/at Flat No.E-301, 3rd Floor,
Abodh Valmark Apartments,
BBMP Khatha No.141/35/13,
Veerannapalya Main Road,
Govindapura, Nagawara,
Bengaluru - 560 045.
C.C.No.28026/2017
OFFENCE U/S. 138 of Negotiable Instruments Act.
PLEA OF THE Pleaded not guilty.
ACCUSED
FINAL ORDER Accused is Convicted.
(SMT. JYOTHISHREE RAMAGOWDA PATIL)
XXII ADDL. C.M.M., BENGALURU.
JUDGMENT
The complainant has filed the complaint under Section 200 of Cr.P.C., against the accused for the offence punishable under Section 138 of Negotiable Instruments Act.
2. The brief facts of the case of the complainant are that;
The complainant is represented through her Power of Attorney and it is stated in the complaint that she is the beneficial owner of Flat No.E-301 situated at Abodh Wallmark Apartments within the limits of the BBMP, Bengaluru. The children of the complainant by name Ranganath Setlur and Miss. Nanda Setlur who are the registered owners of the said property are residing in USA. The complainant being the mother is residing in Bengaluru 2 C.C.No.28026/2017 and the children, for her domestic and medical expenses have arranged to receive the rents from the said property. The accused was residing in the same apartment and she was interested in taking the said property on rental basis. The accused approached the complainant through M/s. Home Shikhari and after mutual negotiations the Flat No.E- 301 was agreed to let out in favour of the accused by fixing advance payment of Rs.1,20,000/- and monthly rent of Rs.25,000/-. The accused before entering into any rental agreement has taken possession of the flat on 25.04.2017. The accused paid Rs.45,000/- once and again Rs.45,000/- and again Rs.25,000/- towards advance amount. The complainant has alleged that the accused was not regular in paying the rents and the arrears of rent became due for five months and she issued two cheques bearing No.542630 dated 12.09.2017 for sum of Rs.50,000/- drawn on IDBI Bank, Indiranagar Branch, Bengaluru and another cheque No.000864 dated 12.09.2017 for sum of Rs.80,000/- drawn on ICICI Bank, Ramamurthy Nagar Branch, Bengaluru towards payment of arrears of rent from the month of April- May 2017 to September 2017 for total sum of Rs.1,25,000/-. The complainant presented the cheque through her account for encashment before Bank of India, Jayanagar 4th Block Branch, Bengaluru. The cheque No.542630 came to be dishonoured for the reasons funds insufficient. The cheque bearing No.000864 came to be dishonoured for the reasons 3 C.C.No.28026/2017 as Alterations on Instruments other than date field Alteratio"
on 13.09.2017. The complainant intimated the same to the accused regarding dishonour of cheque. The legal notice was issued on 11.10.2017 and it was served upon the accused on 14.10.2017. The accused issued reply notice and denied the liability. The accused did not pay the amount. Hence the complaint is filed against the accused for the offence punishable under Section 138 of Negotiable Instruments Act.
3. The sworn statement of the Special Power of Attorney of the complainant was recorded as examination-in-chief and the criminal case was registered against the accused. The accused appeared on receipt of summons and got enlarged on bail. The Substance of Accusation was read over and explained to the accused for which he pleaded not guilty and claimed to be tried.
4. The Special Power of Attorney holder of the complainant is examined as PW.1 and got marked the documents from EXs.P1 to EX.P19. The statement of accused under Section 313 of Cr.P.C., is recorded and got marked the documents EX.D1 to EX.D5. There is no defence evidence.
5. Heard the arguments. The Advocate for the complainant and accused have filed list of citations with points of arguments.4
C.C.No.28026/2017
6. The points that arise for my consideration are as under;
1) Whether the complainant proves that the accused has issued cheque for Rs.50,000/-
bearing cheque No.542630 dated 12.09.2017 drawn on IDBI Bank, Indira Nagar Branch, Bengaluru and another cheque No.000864 Rs.80,000/- dated 12.09.2017 drawn on ICICI Bank, Ramamurthy Nagar Branch, Bengaluru towards discharge of legally enforceable liability?
2) Whether the complainant further proves that when she presented the said cheques for encashment, the cheque No.542630 came to be returned with an endorsement as "Funds Insufficient and cheque No.000864 came to be returned as Alterations on Instrument other than date field Alteratio" and despite receipt of notice also the accused has not complied and thereby committed an offence punishable under Section 138 of Negotiable Instruments Act?
3) What Order?
5C.C.No.28026/2017
7. My answers to the above points are as follows:
Point No.1: In the Affirmative.
Point No.2: In the Affirmative.
Point No.3: As per the final order for the following:-
REASONS
8. Points No.1 and 2: The Special Power of Attorney holder of the complainant is examined as PW.1. He has produced the EXs.P1 to P19.
9. It is undisputed that the accused has occupied the demised premises on 25.04.2017. EX.P8 is the key delivery acknowledgment. It clearly goes to show that the property was delivered on 25.04.2017. It is also admitted that there was no formal rental agreement in between the complainant and the accused. Therefore the agreed terms are not available in writing. The accused admits the payment of Rs.90,000/- and Rs.15,000/- as on 17.07.2017 and 04.08.2017. The accused has also admitted her signatures on both the cheques. It is also admitted that both the cheques are belonging to the account of the accused.
10. The accused has disputed the authority of the present complainant. But as per EX.P8 she has taken the property on rent by accepting Mr. Ranganath Setlur as owner of the property. EX.P10 is the challan towards payment of 6 C.C.No.28026/2017 Rs.45,000/- which is in favour of Srimathi Narayan. EX.P11 is the accounts statement of Srimathi Narayan wherein the transaction in reflected on 24.04.2017. Therefore it clearly goes to show that the NEFT transaction made by the accused to the account of Srimathi Narayan is after accepting the landlord relationship. The present complaint is filed by the Special Power of Attorney. The Advocate for the accused filed written arguments by relying on the reported Judgments.
1. 2004 CRL. L.J. 5 Supreme Court ILR (2000) Karnataka 1570) Crl.A.No.1136 with 1137 of 2001 in the case of K.R. Indira V/s Dr. G. Adinarayana.
2. 1998 CRI.L.J. 4750 Bombay High Court Crl.Writ Petn.No.335 of 1991, D/- 24-8-1998 in the case of Babulal Nainmal Jain V/s Khimji Ratanshi Dedhia and Others.
3. (2008) 1 Supreme Court Cases 258 Criminal Appeal No.1410 of 20017 decided on October 10, 2007 in the case of K. Prakashan V/s P.K. Surendran.
4. AIR 2006 Supreme Court 3366 Criminal Appeal No.1012 of 1999, D/- 4-7-2006 in the 7 C.C.No.28026/2017 case of M.S. Narayana Menon alias Mani V/s State of Kerala and Anr.
5. 1993 CRI.L.J. 1627 Delhi High Court in the case of Virender Singh and others V/s The State.
6. 2013 (14) SCC - 461 - 2013 CLJ 377 in the case of C.S. Takur & Ibrahim Kalifulla.
7. (1986) 2 Supreme Court Cases 709 in the case of Maj. Genl. A.S. Gauraya and Another V/s S.N. Thakur and Another.
11. I have perused the cross-examination of PW.1 and also the Judgment relied by the accused. The arguments advanced for the accused is that the present complainant Srimathi Narayan is not empowered to file the complaint. The complainant in this regard has relied on the Power of Attorney executed by the owners of the property. EX.P13 is the Special Power of Attorney executed by Ranganath Setlur on 13.10.2017 and delegated his mother to let out the premises. It is important to consider that the legal notice in the present case is issued on 11.10.2017 which is much prior to execution of EX.P13. EX.P14 is another Power of 8 C.C.No.28026/2017 Attorney executed by Nanda Setlur on 10.11.2017 which is later to the issuance of legal notice.
12. This complaint is limited to the trial and adjudication of legally enforceable debt or liability and the dishonour of cheque which is issued towards liability. The disputed cheques are issued by the accused in the name of Srimathi Narayan who is the complainant. She has executed the Power of Attorney to the present Power of Attorney holder on 15.11.2017 to prosecute the present case. The legal notice was issued on 11.10.2017 on behalf of the complainant and also through her representative i.e., TTK Property Services Pvt. Ltd., The reference of TTK Properties in the legal notice is shown before execution of the power of attorney by the complainant. The accused is claiming that the present power of attorney is not entitle to prosecute the matter and as well as is not empowered to proceed with the matter.
13. The learned Advocate for the complainant relied on the following Judgments:
1. AIR 2019 Supreme Court 3272 in the case of Vijay Gopala Lohar V/s Panduranga Ramachandra Ghorpade and another.9
C.C.No.28026/2017
2. (2012) 13 Supreme Court Cases 375 in the case of Laxmi Dyechem V/s State of Gujarat and Others.
3. 1995 CRL.L.J. 1882 Madras High Court in the case of Veeraraghavan V/s Lalith Kumar.
4. AIR 2018 Supreme Court 3173 in the case of Kishan Rao V/s Shankargouda.
5. The Supreme Court of India Crl.Appeal Nos.230-231 of 2019 in the case of Bir Singh V/s Mukesh Kumar.
6. In the Supreme Court of India Crl.Appeal No.508 of 2019 in the case of Rohitbhai Jivanlal Patel V/s State of Gujarat & Anr.
7. AIR 2014 Supreme Court 2950 in the case of Mannan SK & Ors V/s State of West Bengal & Another.
8. S.B. Criminal Misc (Pet) No.3519/2016 in the case of State of Rajasthan V/s Budhmal Sharma.
10C.C.No.28026/2017 9 2013 CRI.L.J. (NOC) 451 (BOM.) in the case of Amol Shripal Sheth V/s M/s Hari Om Trading Co & Ors.
10. ILR 2016 KAR 1 Supreme Court in the case of S.R. Sukumar V/s S. Sunaad Raghuram.
14. It is specifically argued that the accused has paid advanced amount in favour of the complainant Srimathi Narayan. Therefore the accused has accepted her as land lord. Therefore the accused cannot dispute the power of the complainant in filing the present complaint.
15. The case under Section 138 of Negotiable Instruments Act, can be prosecuted through Power of Attorney holder. The holder of the cheque in the present case is Srimathi Narayan. The present complaint is filed by her Power of Attorney. EX.P8 also goes to show the name of TTK Property Service Pvt. Ltd., in letting the property to the accused. The delivery of the property may be from any employer of the TTK Property Service Pvt. Ltd. The important point to be considered now is that the accused has not disputed the delivery of the property. The conduct of the accused goes to show that she was inducted in the premises as a tenant and she has admitted Srimathi Narayan as receiver for rent amount and advance amount. On perusal of the entire 11 C.C.No.28026/2017 cross-examination it clearly reveals that the accused has admitted the payment of advance amount.
16. It is the specific defence of the accused that the cheque were not issued for payment of rent. But they were issued for security purpose at the time of induction before giving the advance amount. Once the cheque and signature is admitted it is the burden on the accused to rebut the presumption. One more defence taken by the accused is that the notice itself is defective. But the holder of the cheque is Srimathi Narayan and notice is issued on her behalf and as well as by mentioning the authorized person of the TTK Properties demanding the amount covered under the cheque. Admittedly there is no rental agreement executed in between the parties. When the claim of the accused is rent of Rs.15,000/- per month, it is her burden to prove the same. The accused has taken contention that the rent amount calculating Rs.15,000/- per month was paid to TTK Properties in cash. But no receipts are produced on behalf of her. Herein the cross-examination portion of PW.1 is reproduced as under:
"MAzÀÄ ¨Áj 45 ¸Á«gÀ gÀÆ ºÁUÀÆ E£ÉÆßAzÀÄ ¨Áj 45 ¸Á«gÀ gÀÆ ºÁUÀÆ PÉÆ£ÉAiÀÄ ¨Áj 15 ¸Á«gÀ gÀÆUÀ¼À£ÀÄß PÉÆnÖgÀÄvÁÛgÉAzÀÄ ºÉýzÀÝPÉÌ ¸ÁQë E®èªÉAzÀÄ ºÉüÀÄvÁÛgÉ. ¸ÁQëUÉ FUÀ ªÉÆzÀ® ¨ÁjUÉ DgÉÆæAiÀÄÄ ¤ªÀÄUÉ 45 ¸Á«gÀ gÀÆUÀ¼À£ÀÄß ªÉÄà 2017 gÀ°è PÉÆnÖgÀÄvÁÛgÀAzÀÄ ºÉýzÀÝPÉÌ 12 C.C.No.28026/2017 ¸ÁQë E®èªÉAzÀÄ ºÉüÀÄvÁÛgÉ. ¸ÁQëUÉ FUÀ DgÉÆæAiÀÄÄ ¤ªÀÄUÉ ªÉÄà 2017 gÀ°è 45 ¸Á«gÀ gÀÆ, dįÉÊ 2017 gÀ°è 45 ¸Á«gÀ gÀÆUÀ¼ÀÄ ºÁUÀÆ DUÀ¸ïÖ 2017 gÀ°è 15 ¸Á«gÀ gÀÆUÀ¼À£ÀÄß CAzÀgÉ MlÄÖ 1 ®PÀë 05 ¸Á«gÀ gÀÆUÀ¼À£ÀÄß PÉÆnÖgÀÄvÁÛgÉAzÀÄ ºÉýzÀÝPÉÌ ¸ÁQë ¸ÀļÀÄî JAzÀÄ ºÉüÀÄvÁÛgÉ. ¸ÁQëUÉ FUÀ DgÉÆæAiÀÄÄ C£ÀĸÀÆa ¸ÀéwÛ£À CPÀÆå¥ÉõÀ£ï £ÀÄß AiÀiÁªÁUÀ vÉUÉzÀÄPÉÆArgÀÄvÁÛgÉAzÀÄ PÉýzÀÝPÉÌ ¸ÁQë 25.04.2017 JAzÀÄ ºÉüÀÄvÁÛgÉ. ¸ÁQëUÉ FUÀ «ªÁ¢vÀ ZÉPÀÄÌUÀ¼À ªÉÆvÀÛªÀ£ÀÄß DgÉÆæ¬ÄAzÀ ¤ÃªÀÅ CªÀgÀÄ C£ÀĸÀÆa ¸ÀévÀÛ£ÀÄß vÉUÉzÀÄPÉƼÀÄîªÀ ªÀÄÄAavÀªÁV vÉUÉzÀÄPÉÆArgÀÄwÛÃj JAzÀÄ ºÉýzÀÝPÉÌ ¸ÁQë ¸ÀļÀÄî JAzÀÄ ºÉüÀÄvÁÛgÉ".
17 These suggestions clearly goes to show that the accused is not firm in her defence. The date of taking possession is 25.04.2017. The suggestion stating that the amount was taken by the complainant prior to taking possession of the property is not supported by any documents. The cross- examination portion of PW.1 which is elicited in Page No.18 goes to show that the writings in the cheque and the signature are different. The reasons given by the complainant for not executing the rental agreement is that the accused has not paid the advance amount in time. As per EX.P5 it clearly goes to show that the property was given in possession without executing the formal rental agreement. The cross-examination of PW.1 clearly reveals that there is original suit pending in between the complainant and the accused. It is the accused to explain why she has paid 13 C.C.No.28026/2017 Rs.45,000/- and what is the purpose of paying Rs.45,000/- for two times. PW.1 has clearly stated that the accused was due for arrears of rent from May 2017 to September 2017. The said point has clearly come in the cross-examination of PW.1. PW.1 has categorically stated during his cross- examination that the accused has not paid a single rupee towards rent. The accused herself has suggested to PW.1 that the accused has paid only Rs.1,05,000/- and she is due for Rs.15,000/- towards advance amount. PW.1 has categorically deposed that the accused has not paid any advance rent. The accused has not stepped in to the witness box to prove her contention regarding payment of rent in cash. PW.1 has categorically denied the payment of rent as stated by the accused. The documents produced on behalf of the accused does not show any payment of rent in favour of the complainant.
18. The complainant has later on produced EX.P8 to P.19 to prove the contention. The Power of Attorney documents are produced on behalf of the complainant. Herein the contention of the reply notice given by accused also important. The reply notice is marked as EX.P6. The accused states in reply notice that the averments of the complainant regarding beneficial owner of the dwelling premises may be true and correct. Therefore it clearly goes to show that the accused has admitted the delivery of the 14 C.C.No.28026/2017 property by accepting the condition of payment to the account of Srimathi Narayan. The contention in reply notice also goes to show that as per oral agreement in between the complainant and the accused she has agreed for payment of advance amount of Rs.1,20,000/-. The contention in the reply notice also goes to show that two blank cheques which are questioned in this proceedings were given for collateral security. Now it is settled law that even the cheque which are issued for security purpose they also come within the purview of Section 138 of Negotiable Instruments Act, in constituting the offence. Even if we consider the contention of the accused in her reply notice it clearly goes to show that she is not regular in payment of rent. Therefore under these circumstances it clearly goes to show that the cheque were issued for enforceable liability. The accused has failed to rebut the presumption. As per Section 139 of Negotiable Instruments Act, it shall presumed unless the contrary is proved that the holder of the cheque received the cheque of the nature referred to in Section 138 of Negotiable Instruments Act for the discharge, in whole or in part of any debt or other liability. Presumptions are devices by use of which the Courts are enabled and entitle to pronounce on an issue not withstanding that there is no evidence or insufficient evidence. Under the Evidence Act, all presumptions must come under one or the other class of three classes mentioned in the Act, namely may presume, 15 C.C.No.28026/2017 shall presume and conclusive presumptions. In a trial under Section 138 of Negotiable Instruments Act, a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the instrument, the rules of presumptions under Section 118 and 139 of the Act, help him shift the burden on the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused i.e., the cheque was not issued for consideration and in discharge of any debt or liability. Therefore a presumption makes a prima facie case for complainant for whose benefit it exists. Mere denial or mere creation of doubt regarding enforceable liability is not sufficient to rebut presumption. Therefore on analyzing all these aspects in the present case on hand the complainant has successfully made her case and she is entitle for drawing up of presumption. The accused has failed to rebut the presumption. Therefore the case of the complainant is acceptable.
19. The cheque bearing No.542630 is returned as Funds Insufficient. The cheque bearing No.000864 returned as Alterations on Instruments other than the date filled. The learned Advocate for the accused relied on the Judgment of 16 C.C.No.28026/2017 the Hon'ble High Court of Bombay reported in 1999 (5) BOM Cr.72 in the case of Sri Babulal Nainmal Jain V/s Khimji Ratan Shah Dedhia and others and submitted that the overwriting in the cheque will not amount to an offence. But the endorsement in cheque bearing No. 000864 is alterations on instruments other than the date filled. The facts of the present case are different. As per the Judgment relied by the learned counsel for the complainant, reported in (2012) 13 Supreme Court Cases 375, the other endorsements than Funds Insufficient also constitute the offence under Section 138 of Negotiable Instruments Act. Therefore where the accused failed to discharge the burden of rebuttal by proving that the cheque could be held to be a cheque only for discharge of lawful debt or enforceable liability. The legal notice is served upon the accused and the accused replied to the said notice. Therefore all these points goes to show that the complainant has established all the ingredients under Section 138 of Negotiable Instruments Act.
20. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies. Therefore the accused who has taken possession of the property as a tenant has failed to place sufficient material to rebut the presumption.
17C.C.No.28026/2017
21. Herein I rely on the Judgment reported in AIR 2019 Supreme Court 1876 rendered by the Hon'ble Supreme Court of India in the case of Rohit Bhai Jeevanlal Patel V/s State of Gujarath and Another wherein it is held that when all basic ingredients of Section 138, 118 and 139 are apparent on the face of record it is required to be presumed that cheque in question was drawn for consideration and complainant received it in discharge of an existing debt. Herein the present case the cheque issued in favour of the complainant is for enforceable liability. Hence the accused is liable for conviction. Hence I answer Point No.1 and 2 in the Affirmative.
22. Point No.3:- For the aforesaid reasons I proceed to pass the following:
ORDER Acting under Section 255(2) of Cr.P.C., the accused is hereby convicted and sentenced for the offence punishable under Section 138 of Negotiable Instruments Act and directed to pay compensation/fine of Rs.1,60,000/- (Rupees One Lakh Sixty Thousand) to the complainant.
In the total compensation/fine amount a sum of Rs.2,000/- (Rupees Two thousand) shall be paid to the State as fine.18
C.C.No.28026/2017 In default of the aforesaid compensation/fine amount the accused shall undergo simple imprisonment for three months.
(Dictated to the stenographer directly on computer, typed by him and corrected and then pronounced by me in the open Court this the 27th day of September 2019).
(SMT. JYOTHISHREE RAMAGOWDA PATIL) XXII ADDL. C.M.M., BENGALURU.
ANNEXURE Witnesses examined for the complainant:
PW.1 :Kathirvel (SPA Holder).
Witnesses examined for the defence:
-Nil-
Documents marked for the complainant:
EX.P 1 :Cheque; EX.P1(a) :Signature of the accused; EX.P2 :Cheque; EX.P2(a) :Signature of the accused; EX.P3 and P4 :Cheque Return Memos; EX.P5 :Legal Notice dated 11.10.2017; 19 C.C.No.28026/2017 EX.P5(a) :Postal Receipt; EX.P5(b) :Postal Acknowledgment; EX.P6 :Notice dated 15.11.2017; EX.P7 :Special Power of Attorney; EX.P8 :Key Delivery Acknowledgment; EX.P9 :Letter; EX.P10 :Challan of Bank of India; EX.P11 :Bank of India statement; EX.P12 :Rental Agreement; EX.P13 :Specific Power of Attorney; EX.P14 :Specific Power of Attorney; EX.P15 :Authorization Letter dated 14.11.2017; EX.P16 :Email copy and EXs.P17 to P19 :Copy of order details. Documents marked for the defence: EX.D1 :Sale Deed dated 23.05.2013; EX.D2 :Form No.15-Encumbrance Certificate and EX.D3 :Certified copy of O.S.No.5287/2017. (SMT. JYOTHISHREE RAMAGOWDA PATIL) XXII ADDL. C.M.M., BENGALURU. 20 C.C.No.28026/2017 Documents marked for the defence: EX.D4 : Certified copy of Verifying Affidavit. EX.D5 : Certified copy of Vakalath. (SMT. JYOTHISHREE RAMAGOWDA PATIL) XXII ADDL. C.M.M., BENGALURU. 21