Bangalore District CourtMrs. Anitha C vs Mrs. Shakuntala on 1 March, 2023KABC0C0034252021\n\n\n\n\n         IN THE COURT OF XXXIV ADDL. CHIEF METROPOLITAN\n        MAGISTRATE, MAYO HALL UNIT, BENGALURU. (ACMM-34)\n\n           PRESENT: Smt.PARVEEN A BANKAPUR, B.Com.LLB.\n                    XXXIV ADDL. CHIEF METROPOLITAN\n                    MAGISTRATE,\n                   Dated : This the 1st day of March, 2023.\n                            C.C.No.51048/2021\n\nCOMPLAINANT                 :   Mrs. Anitha C.,\n                                W/o. Govindaraju,\n                                Aged about 42 years,\n                                R/at No.245, 3rd Main,\n                                Maruthi Layout,\n                                Dasarahalli, H.A.Farm Post,\n                                Bengaluru- 24.\n                                (By Mr. Aruna S.G.R - Advocates)\n                                         V/s\nACCUSED                     :   Mrs. Shakuntala,\n                                W/o. Narasimha Murhty J.N.\n                                Aged about 50 years,\n                                R/at No.21/A,1st Floor,\n                                Muniswara Temple Road,\n                                2nd Cross, Hebbala,\n                                Kempapura,H.A.Farm,\n                                Bengaluru - 560 024.\n\n                                Also at - No.26,Sri Krishna Nilaya,\n                                3rd Main,Nethaji Nagara,\n                                Hebbala, Kempapura,\n                                Bengaluru - 24.\n                                (By Mr.Pavan K.M. - Advocate)\n1   Date of Commencement        19.10.2020\n    of offence\n2   Date of report of offence   08.01.2021\n3   Presence of accused\n    3a. Before the Court        16.09.2021\n    3b. Released on bail        16.09.2021\n                               2                    C.C.No.51048/2021\n\n4   Name of the Complainant       Mrs. Anitha C.\n5   Date of recording of        27.01.2021\n    evidence\n6   Date of closure of evidence 04.08.2022\n7   Offences alleged            U/s 138 of theNegotiable\n                                Instruments Act.\n8   Opinion of Judge            Accused is found guilty.\n\n\n                    JUDGEMENTThe Private Complaint is filed by the Complainant underSection 200of Cr.P.C against the accused alleging that she has\n\ncommitted     the offence punishable underSection 138of\n\nNegotiable Instruments Act.2. The brief facts of the complaint are as follows:The complainant submits that the Accused is very well\n\nacquainted to her from past several years. Out of such\n\nacquaintance, the accused had approached the complainant\n\nduring the first week of December 2019 for a handloan of Rs.3\n\nlakhs in order to fulfill the legal necessities of her family.Considering the request of the accused, the complainant paid\n\nRs.3 lakhs by way of cash at her residence during the last week\n\nof December 2019. The accused had assured and promised to\n\nrepay the same within a span of six months.3                 C.C.No.51048/2021It is further submitted by the Complainant that after\n\nlapse of stipulated time of six months, the accused has not\n\nrepaid the loan amount. Further after several follow-ups and\n\ndemands for repayment of the said loan amount, the accused\n\nissued a cheque bearing No.550578 dtd.19.10.2020 for Rs.3\n\nlakhs drawn on Corporation Bank, Coffee Board Layout branch,\n\nBengaluru, Further the accused had instructed her to present\n\nthe same during the last week of October 2020 as she need\n\nsome time of mobilize the cheque amount and promised her\n\nthat the cheque would be honoured on its presentation.It is further submitted that as per the instruction of the\n\nAccused, the Complainant presented the said Cheque through\n\nher banker i.e., Bank of India, Banaswadi Branch, Bengaluru\n\nfor encashment on 28.10.2020, but the said cheque was\n\nreturned unpaid for the reason "funds insufficient" with an\n\nendorsement dtd.29.10.2020. Thereafter, the Complainant got\n\nissued demand notice through RPAD on 24.11.2020 through\n\nher counsel and the same was served on the accused on\n\n25.11.2020. Inspite of receipt of legal notice, the accused has\n\nneither paid the Cheque amount nor replied to the notice.Accordingly, the Complainant has filed present complaint4                C.C.No.51048/2021against the Accused for the offence punishable u/Sc.138 of N.I\n\nAct. Hence, this complaint.3. Based on the complaint, the sworn statement affidavit,\n\nand documents etc., the court took cognizance of an offence\n\npunishable UnderSection 138of N.I. Act by following the\n\nguidelines of Apex Court issued in Indian Bank Association\n\ncase and ordered to be registered a criminal case against the\n\naccused for the offence punishable UnderSection 138of N.I.\n\nAct.4. After issuance of summons, accused appeared before\n\nthe court and enlarged herself on bail. Plea was recorded, read\n\nover and explained to the accused, who pleads not guilty and\n\nclaims to be tried. Hence, the case is posted for complainant's\n\nevidence.5.   The Complainant got examined herself as PW-1 and\n\nshe got marked 5 documents as Ex.P.1 to Ex.P.5.6.   The statement as required underSection 313of\n\nCr.P.C. was recorded. The accused denied all the incriminating\n\nevidence appeared against her. The Accused has not tendered\n\nher evidence.5                  C.C.No.51048/20217. I heard arguments of learned counsel for Complainant.\n\nSince the Accused and her learned Counsel remained absent,\n\nhence, argument of Accused side is taken as nil with liberty to\n\nfile written arguments.8. Upon hearing the arguments and on perusal of the\nmaterials placed on record, the following points arise for my\nconsideration.1) Whether complainant proves beyond all\n          reasonable doubts that accused in discharge of\n          legally recoverable debt has issued a Cheque\n          bearing     No.550578    dtd.19.02.2020    for\n          Rs.3,00,000/- drawn on Corporation Bank,\n          Coffee Board Layout branch, Bengaluru       in\n          favour of the complainant which came to be\n          dishonoured with an endorsement "funds\n          insufficient" on 29.10.2020 and in spite of\n          service of notice accused has not paid the\n          Cheque amount and thereby committed an\n          offence underSection 138of N.I.Act?2) What Order?9.     My findings on the above points is:Point No.1: In the Affirmative\n\n            Point No.2: As per final order\n                        for the following:REASONS\nPoint No.1:-10.      Existence of legally recoverable debt is a sine qua\n\nnon for prosecuting the case underSection 138of Negotiable6                 C.C.No.51048/2021Instruments   Act.   For   convenient   purpose   the   essential\n\ningredients to constitute offence undersection 138of N.I.Act is\n\nsummarized as below:(i) That there must be a legally enforceable debt.(ii) That the cheque was drawn from the account of\n      bank for discharge in whole or in part of any debt\n      or other liability which presupposes the legally\n      enforceable debt.(iii)That the cheque so issued had been returned due\n     to "funds insufficient".11.   It is the core contention of the complainant that, the\n\nComplainant and Accused are very well acquaintance from the\n\npast several years, out of such, the Accused has approached\n\nthe Complainant during the first week of December 2019, to\n\nextend the handloan of Rs.3 lakhs for the purpose of fulfill the\n\nlegal necessities of the Accused's family. It is further submits\n\nthat, Complainant got paid Rs.3 lakhs by way of cash and\n\nAccused undertake to repay the said loan amount within six\n\nmonths. It is further submitted that, after lapse of 6 months,\n\nthe Complainant approached the Accused many times seeking\n\nfor the repayment of the handloan, but he Accused made the\n\nComplainant to run pillar post by giving one or other reasons.\n\nThereafter, finally the Accused had issued Cheque bearing7                       C.C.No.51048/2021No.550578    dtd.19.10.2020       for   Rs.3   lakhs    in   favour   of\n\nComplainant,    which   is   dishonoured       with    reason    "funds\n\ninsufficient" on 29.10.2020. Thereafter, Complainant had\n\nissued legal notice to the Accused on 24.11.2020 which was\n\nduly served upon the Accused on 25.11.2020, inspite of service\n\nof notice, the Accused neither complied nor replied to the said\n\nnotice. Therefore, the Complainant has filed complaint against\n\nthe Accused for the offence punishable u/Sec.138of N.I. Act.12.    In order to bring home the guilt of the accused, the\n\nComplainant has examined           as    PW-1. PW1 reiterated the\n\ncontents of complaint in her examination-in-chief. She has also\n\nplaced the original Cheque bearing No.550578 dtd.19.10.2020\n\nat Ex.P1, bank endorsement at Ex.P2, office copy of legal notice\n\nissued by the Complainant to the Accused on 24.11.2020 at\n\nEx.P3, postal receipt at Ex.P4 and postal track at Ex.P5.13. The documents produced by the complainant of course\n\nestablished that the complainant meets out the procedural\n\nrequirements ofsection 138of Negotiable Instrument Act, but it\n\nis to be considered whether all these documents establish the\n\noffence committed by the accused.8                  C.C.No.51048/202114.    On perusal of the oral and documentary evidence\n\nplaced by the complainant, it reveals that the present complaint\n\nis filed well within time in accordance with the provisions ofNegotiable Instruments Act. Moreover, there is no dispute with\n\nregard to taking cognizance of the offence punishable underSection 138of N.I. Act.15.The      Negotiable       Instruments   Actraises   two\n\npresumptions. One contained inSection 118and the other inSec. 139thereof. For the sake of convenience Sec 118(1) of theN.I. Actis extracted here below:118. Presumptions as to negotiable Instruments ---Until the contrary is proved, the following presumptions shall\n\nbe made ;--(a) of consideration that every negotiable instrument\n     was made or drawn for consideration, and that every\n     such instrument, when it has been accepted, indorsed,\n     negotiated or transferred, was accepted, indorsed,\n     negotiated or transferred for consideration.1. To (g) . . . . . . . . . . . .Provided that where the instrument has been obtained from\n\nits lawful owner, or from an person in lawful custody thereof,9                  C.C.No.51048/2021by means of an offence of fraud, or has been obtained from the\n\nmaker or acceptor thereof by means of an offence of fraud, or\n\nfor unlawful consideration, the burden of proving that the\n\nholder is a holder in due course lies upon him".16.   FurtherSection 139of the Negotiable Instruments\nAct reads as under;"139, Presumption in favour of holder. It shall\n      be presumed, unless the contrary is proved, that\n      the holder of a cheque received the cheque, of the\n      nature referred to insection 138, for the discharge,\n      in whole or in part, of any debt or other liability."17.   Scope and ambit and function of the presumption\n\nU/s 118(a) and Sec 139 ofNI Actcame to be considered by the\n\nHon'ble Apex Court of Indian inKrishna Janardhan Bhat\n\nVs Dattatraya G.Hegde(2008 NIAR (Criminal 151)                The\n\nSupreme Court has laid down the law in the following\n\nphraseology."D Negotiable Instruments Act1881, Secs. 139, 138--Presumption under-same arises in regard to\n      second aspect of the matter provided under Sec 138--Existence of legally enforceable debt is not a\n      matter of presumption under Sec 139-         It merely\n      raises presumption in favour of a holder of the10                     C.C.No.51048/2021cheque that the same has been issued for discharge\n      of any debt or other liability - Merely an application\n      of presumption contemplated underSection 139of\n      N.I.Act should not lead to injustice or mistaken\n      conviction."18. Further, said decision was followed by Hon'ble High\n\nCourt of Karnataka inKempanarasimhaiah Vs P.Rangaraju\n\n& Others(2008 (5) KCCR 3371). Relevant paragraph ofthe\n\nsaid judgmentreads as under: -"12. As to the provisions ofSections 138of N.I.Act, the\n      following     principles    emerge     from       the   above\n      observations of Hon'ble Supreme Court at para Nos.\n      21, 23, 25, 26 and 34 of its Judgment in the above\n      said case ofKrishna Janardhan Bhat Vs Dattatraya\n      G.Hegde, AIR 2008 SC 1325.(i)Section 139of the Act merely raises a presumption\n      that the cheque was issued towards discharge in\n      whole or in part in any debt or other liability, which\n      presupposed legally enforceable debt.             Existence of\n      legally     recoverable    debt   is   not    a    matter    of\n      presumption underSection 139of the Act. It merely\n      raises a presumption in favour of            a holder of the\n      cheque that the same has been issued for discharge\n      of any debt or other liability." (para 21)11                 C.C.No.51048/2021(ii)    The question as to whether the presumption stood\n        rebutted or not, must be determined keeping in view\n        the other evidences on record. Where the chances of\n        false implication cannot be ruled out, the background\n        fact and the conduct of the parties together with their\n        legal requirements are required to be taken into\n        consideration. (para 26)(iii)   An accused, for discharging the burden of proof\n        placed upon him under a statute, need not examine\n        himself. He may discharge his burden on the basis of\n        the materials already brought on records (para 23)(iv)    Standard of proof on the part of an accused and that\n        of the prosecution in a criminal case is different.Further more where as prosecution must prove the\n        guilt of an accused beyond all reasonable doubt, the\n        standard of proof so as to prove a defence on the part\n        of an accused is "preponderance of probabilities'"(para 23 & 25)(v)     Inference of preponderance of probabilities can be\n        drawn not only from the materials brought on records\n        by   the   parties   but    also   by   reference   to   the\n        circumstances upon which he relies (para 25)(vi)    Other important principles of legal jurisprudence,\n        namely presumption of innocence as human rights\n        and the doctrine of reverse burden introduced bySection 139should be deliberately balanced (para 34)12                  C.C.No.51048/202119. Thus from the observations extracted above, it is clear\n\nthat presumption UnderSection 139of the N.I. Act is only to\n\nthe extent that the cheque was drawn for discharge in full or in\n\npart of any debt or other liability and the said presumption do\n\nnot relate to the existence of legally enforceable debt or liability.\n\nTherefore, before drawing the presumption undersection 139of\n\nthe N.I.Act, it is the duty of the Court to see whether or not the\n\ncomplainant has discharged his initial burden as to existence of\n\nlegally enforceable debt. No doubt, as perSection 118(a)of the\n\nAct, there is a rebuttable presumption that every negotiable\n\ninstrument, is accepted, endorsed, negotiated or transferred\n\nwas    accepted,   endorsed,    negotiated    or   transferred    for\n\nconsideration."20. Factual matrix of the case is required to be tested on\n\nthe anvil of principles emerging from the above-referred\n\ndecisions.21. In the instant case the complainant has placed Ex.P1\n\noriginal Cheque issued by the Accused in her favour               for\n\nrepayment of handloan amount of Rs.3 lakhs. The Accused did13               C.C.No.51048/2021not denied the issuance of Cheque and signature on the\n\nCheque.22. It is also significant to note that even though the\n\nComplainant has examined herself as PW1 and reiterated the\n\ncontents of complaint in her examination-in-chief affidavit, the\n\nAccused failed to cross-examine PW1 inspite of availing\n\nsufficient opportunities. The Complainant - PW1 categorically\n\nstated in her examination-in-chief that       the Accused       has\n\nissued Cheque in question to discharge the liability recoverable\n\ndebt. This testimony of PW1 remained un-contraverted and\n\nunchallenged. Under such circumstances, whatever version\n\ngiven by the PW1 is to be accepted as true. This view is fortified\n\nby the ratiolaid down bythe Hon'ble High Court of Karnataka\n\ninSmt. Vimala Bai Vs. Babu and another, 2002 (2) K. L. J. 301\n\nwhich reads as under;"D -Indian Evidence       Act1872,Sec.137,138and\n     155 - cross-examination of opponents witness -\n     presumption arising from failure to hold -         party\n     should put his case in cross-examination of witness\n     of opposite party, and failure to cross-examine gives\n     rise presumption that account given by opponents\n     witness is acceptable. "14                 C.C.No.51048/202123.In the said view is also reiterated in the ratiolaid\n\ndown byHon'ble Apex Court of India, in 2003 (1) SCC 240 in\n\nthe case of Sarwan Singh V/s. State of Punjab, may be useful\n\nto referred, which reads thus;"E-Criminal trial -    Appreciation of evidence -\n      Generally - whenever opponent declines to avail\n      himself of the opportunity to put his case in cross-\n      examination, it must follow that the evidence\n      tendered on that issue ought to be accepted. "24.   Hence, by applying the above said ratio to the facts\n\nof the present case, whatever version given by the PW1 is to be\n\naccepted as true.    Because, admittedly, PW1 has not been\n\ncross-examined by the Accused.25.   Therefore, Complainant has discharged her initial\n\nonus laid on her. When she has discharged her initial onus, it\n\nraises presumption u/Sec.118(A)and139of N.I Act. Accused\n\nhas failed to rebut the presumption either by cross-examining\n\nof PW1 or by leading her evidence.26. On perusal of order sheet, it depicts that even after\n\ngiving sufficient opportunity the Accused did not make use of it\n\nand did not cross-examine PW1 and adduce evidence on her\n\nbehalf. Therefore, there is no defence on behalf of the Accused.15                    C.C.No.51048/2021The presumption available in favour of the Complainant\n\nu/Sec.138of N.I. Act is not rebutted by the Accused. In view of\n\nabove discussion, I am of the considered view that the Accused\n\nutterly failed to rebut the presumption available to the\n\nComplainant by giving cogent and convincing evidence. The\n\nComplainant produced relevant materials on record to believe\n\nher case. The case of the Complainant is acceptable one as\n\nthere are materials on record on her behalf. The Complainant\n\nhas placed sufficient materials on record to establish her case\n\nand the evidence on record is sufficient to accept the case of the\n\nComplainant that the Accused        had issued       Ex.P1 Cheque\n\ntowards   legally   enforceable    debt   or    liability   and   the\n\nComplainant has proved all ingredients ofSec.138of N.I Act so\n\nas to constitute offence against the Accused.27. As discussed above, the Complainant has proved her\n\ncase as to commission of offence punishable u/Sec.138of N.I.\n\nAct by the Accused. Considering the facts and circumstances of\n\nthe case, nature of the case, year of transaction, nature of\n\ninstrument involved, provisions ofSec.117of N.I. Act, cost of\n\nlitigation and rate of interest proposed by Hon'ble Supreme\n\nCourt in 2012 (1) SCC 260 (R. Vijayan V/s. Baby), etc., this\n\ncourt is of the considered view that it is just and reasonable to\n\nimpose a fine of Rs.3,39,600/- and out of said amount, a sum16                              C.C.No.51048/2021of Rs.5,000/- has to be remitted to the State and the remaining\n\namount of Rs.3,34,600/- is to be given to the Complainant as\n\ncompensation as provided u/Sec.357 (1)of Cr.P.C. and\n\naccordingly, the Point No.1 is answered in the Affirmative.28.   Point No.2 : In view of discussion held in Point\nNo.1, I proceed to pass the following :ORDER\n\n             Acting U/S 255(2) ofCr.P.C., the accused is\n       convicted for the offence punishable UnderSection\n       138of   Negotiable     Instrument           Act.               Accused\n       is      sentenced          to        pay                 fine                  of\n       Rs.3,39,600/- (Rupees Three Lakhs Thirty-nine\n       Thousand and Six Hundred only) in default to\n       undergo     simple    imprisonment          for         6          months.Further, it is made clear that out of fine amount of\n       Rs.3,34,600/- (Rupees Three Lakhs Thirty-four\n       Thousand and Six Hundred only) is to be paid to\n       the complainant as compensation and Rs.5,000/-\n       is ordered to be remitted to the State.Bail bond stands cancelled.Supply the free copy of this judgement to the\n       Accused forthwith.(Dictated to the Stenographer, transcript computerized by her,\n    revised corrected and then pronounced by me in the open Court on\n    this the 1st day of March, 2023)\n                                       PARVEEN A    Digitally signed by PARVEEN A\n                                                    BANKAPUR\n                                       BANKAPUR     Date: 2023.03.01 17:39:02 +0530\n\n\n                                 (PARVEEN A BANKAPUR)\n                                 XXXIV ACMM, Bengaluru.17                    C.C.No.51048/2021ANNEXURE1. Witnesses examined on behalf of Complainant:P.W.1     Mrs. Anitha C.2. Documents marked on behalf of complainant:Ex.P.1    Cheque\nEx.P.2    Bank endorsement\nEx.P.3    Office copy of Legal Notice\nEx.P.4    Postal receipt\nEx.P.5    Postal track3. Witnesses examined on behalf of Accused:NIL4. Documents marked on behalf of Accused :NIL\n                                 PARVEEN A   Digitally signed by\n                                             PARVEEN A BANKAPUR\n\n                                 BANKAPUR    Date: 2023.03.01 17:38:47\n                                             +0530\n\n\n                               (PARVEEN A BANKAPUR)\n                               XXXIV ACMM, Bengaluru.