Bangalore District Court
Shantamma vs S G Lakshmi on 9 January, 2025
KABC010228842020
Presented on : 17-12-2020
Registered on : 18-12-2020
Decided on : 09-01-2025
Duration : 4 years, 0 months, 23 days
IN THE COURT OF LXVI ADDL CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-67)
PRESENT
SHRI. JAYAPRAKASH A.
B.A.L., L.L.M.,
LXVI Addl. City Civil & Sessions Judge,
Bengaluru (CCH-67)
Dated this the 9th day of January, 2025
Crl.Appeal.No. 859 of 2020
APPELLANT Smt.Shantamma,
W/o late Jagadeesh,
Aged about 52 years,
R/at No.357, Opp to
'Naganatheshwara Temple'
Hosa Beedi, Begur Village,
Begur Hobli,
Bengaluru South Taluk
(Sri.BKN. Advocate)
V/s.
RESPONDENT/s:- S.G.Lakshmi,
D/o Late S.N.Govind Shetty,
Aged about 40 years,
No.11/59, VP Road,
Near Cauvery Convent School,
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Madivala,
Bengaluru 560 068.
(Sri. GVJ, Advocate)
JUDGMENT
The appellant / accused has filed appeal under section
374(3) of Code of Criminal Procedure challenging the judgment
dated 04/11/2020 passed in C.C.No.24915/2015 on the file of
XVI ACMM, Bengaluru.
2. The appellant is the accused and respondent is the
complainant before the trial Court. For the sake of convenience
the parties are referred by their ranks before the trial Court.
3. The brief facts of the complainant’s case is that the
complainant and the accused are close friends since long time and
both were helping each other in all aspects. On 18/01/2012 the
accused approached the complainant and sought for financial
assistance of Rs.3,00,000/- for her family business purpose. The
accused agreed to pay interest at the rate of 4% per month
promising to repay the entire amount within one year.
Accordingly, on 18/01/2012 the accused borrowed a sum of
Rs.3,00,000/- from the complainant and her sister A.G.Usharani.
When the complainant requested the accused to repay the amount
after lapse of one year, the accused sought further time of two
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years for repayment of the amount. The complainant approached
the accused on 18/01/2015 with a request to repay the amount.
Therefore the accused had issued a post dated cheque bearing
No.357219 drawn on City Bank NA, dated 18/06/2015 for a sum
of Rs.6,60,000/-. As per the request of the accused the
complainant presented the above said cheque for encashment on
15/06/2015 through her banker Canara Bank, DVG Road
Branch, Basavanagudi, Bengaluru, but the said cheque has been
returned unpaid for the reason ‘account closed’ as per memo
dated 16/06/2015. Immediately after the receipt of the
endorsement, the accused got issued a legal notice dated
13/07/2015 calling upon the accused to pay the cheque amount.
The said notice was duly served upon the accused on
15/07/2015 but the accused neither paid the amount nor replied
the notice. Therefore, the complainant has filed the complaint
before the trail court.
4. The trial Court recorded sworn statement of the complainant
by way of affidavit. Thereafter cognizance was taken for the
offence punishable under section 138 of N.I.Act and summons
was issued to the accused. The accused appeared through her
counsel and she has been released on bail. Her plea was recorded.
she pleaded not guilty and claimed to be tried. In support of her
case, the complainant got examined herself as PW1 and got
marked 11 documents as Ex.P1 to Ex.P11. Thereafter, the
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Crl.A.No.859/2020
accused was examined under section 313 of Cr.P.C. The accused
denied all the incriminating evidence appearing against her. The
accused got examined herself as DW-1 but has neither chosen to
examine any witness on her behalf nor produced any documents
in support of her case.
5. After hearing arguments of both sides and considering
materials on record, the trial Court passed a judgment of
conviction sentencing the accused to pay fine of Rs.06,75,000/-
with a direction to pay a sum of Rs.6,70,000/- as compensation to
the complainant and in default to undergo simple imprisonment
for a period of three months.
6. Being aggrieved by the above said judgment the appellant /
accused preferred this appeal on the following among other
grounds:
(i) The learned trial Court failed to consider the fact that as per the
complaint the loan borrowed was Rs.3,00,000/- on 18/01/2012.
But the cheque is for a sum of Rs.6,60,000/- which indicates that
cheque was issued after lapse of three years of the borrowal of
loan, hence it is a time barred debt.
(ii) The complainant has not produced any documents to show
that accused has sought for extension of time to pay the amount.
The learned trial Court has blindly believed the case of the
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complainant without any evidence in respect of the said
contention.
(iii) During the cross examination of PW-1 she has stated that
she had paid a sum of Rs.2,00,000/- to the accused on
20/10/2011 and she has not taken any action on that loan. It is
not explained as to how complainant bestowed another sum of
Rs.3,00,000/- when the accused was already due a sum of
Rs.2,00,000/-.
(iv) PW.1 during the cross examination has stated that she has
deposited a sum of Rs.95,000/- on different dates i.e., on
16/01/2012, 18/01/2012 and 20/01/2012 to the account of the
accused including the hand loan of Rs.3,00,000/- mentioned in
Ex.P.6 which means as on the date of Ex.P.6 Rs.3,00,000/- was
not given to the accused. Therefore, there is no transaction as
claimed by the complainant on 16/01/2012. The learned trial
Court has failed to consider the said aspect.
(v) The complainant had no financial capacity to pay the
amount to the accused. The learned trial Court failed to consider
the same.
(vi) The complainant’s brother Subramani was arranging tours
who is known to the accused and he has stolen 4 cheques
pertaining to accused and her son and filed different cases.
Though accused has taken such a contention, learned trial Court
failed to consider the same.
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(vii) The learned trial Court failed to consider the fact that the
address shown in Ex.P.6 and address shown in the complaint are
different. Therefore, the trial Court ought to have accepted the
contention of the accused that notice was not received by her.
The said aspect has not been considered by the learned trial
Court.
(viii) The learned trial Court failed to consider the defence of the
accused to the effect that the cheques were stolen by the brother
of the complainant and also failed to consider the complaint
lodged before the police and also enquiry regarding the same.
(ix) The learned trial Court failed to consider the fact that the
accused has not received the notice and therefore, she has not
replied the notice.
(x) The learned trial Court has passed the judgment without
appreciating the evidence on record.
(xi) The judgment of the trial Court is contrary to law and facts
and circumstances of the case.
On the above among other grounds the appellant / accused
prayed to allow the appeal and to set aside the judgment of Trial
Court.
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7. After registering the appeal notice was issued to the
respondent. The respondent appeared through its counsel and
trial Court records were secured.
8. Heard the learned counsels for Appellant and respondent
and perused the materials placed on record.
9. On hearing the arguments and on perusal of the materials
placed before the Court the points that arise for consideration are:
(1) Whether the finding of the trial Court that
the accused failed to discharge the presumption
under section 138 of N.I. Act with probable
defence that the cheque was not issued for
discharge of legally recoverable debt or liability
is justified ?
(2) Whether the finding of the trial Court that
the complainant proved that cheque is issued
towards discharge of legally enforceable debt is
justified ?
(3) Whether the impugned judgment of the trial
Court is capricious and erroneous and liable to
be interfered ?
(4) What order ?
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10. My answer to the above points are:
Point No.1: In the Affirmative.
Point No.2: In the Affirmative.
Point No.3: In the Negative.
Point No.4: As per final order
for the following:
REASONS
11. Point No.1 & 2: Since these points are inter-linked
with each other they are taken up together for common discussion
in order to avoid repetition of facts and appreciation of evidence.
12. It is the case of the complainant that the complainant
and the accused are close friends since long time and both were
helping each other in all aspects. On 18/06/2012 the accused
approached the complainant and sought for financial assistance of
Rs.3,00,000/- for her family business purpose. The accused
agreed to pay interest at the rate of 4% per month promising to
repay the entire amount within one year. Accordingly, on
18/01/2012 the accused borrowed a sum of Rs.3,00,000/- from
the complainant and her sister A.G.Usharani. When the
complainant requested the accused to repay the amount after
lapse of one year, the accused sought further time of two years for
repayment of the amount. The complainant approached the
accused on 18/01/2015 with a request to repay the amount.
Therefore the accused issued a post dated cheque bearing
No.357219 drawn on City Bank NA, dated 18/01/2015 for a sum
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Crl.A.No.859/2020
of Rs.6,60,000/-. As per the request of the accused the
complainant presented the above said cheque for encashment on
15/06/2015 through her banker Canara Bank, DVG Road
Branch, Basavanagudi, Bengaluru, but the said cheque has been
returned unpaid for the reason ‘account closed’ as per memo
dated 16/06/2015.
13. In support of the case of the complainant, she got
examined herself as PW1 and has filed her affidavit in lieu of oral
evidence. In her evidence she has testified regarding the
transaction, issuance of cheque towards discharge of liability,
subsequent dishonour of cheque, service of legal notice and failure
of accused to pay the amount. In her further examination she got
marked Ex.P1 to Ex.P11.
14. In the proceeding under section 138 of N.I.Act, the
plaintiff is not required to establish either legality or enforceability
of the debt or liability. She is guarded by the presumption under
section 118 and 139 of N.I.Act. By virtue of these presumptions
the accused has to establish that the cheque in question was not
issued towards any legally enforceable debt or other liability and
the burden is upon the accused to rebut the presumption
available in favour of the complainant.
15. In the present case the accused has not disputed the
fact that Ex.P1 cheque belong to her account. But she has
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Crl.A.No.859/2020
disputed her signature in Ex.P.1 cheque. The factum of
dishonour due to “account closed” is not in dispute. After the
issuance of legal notice, accused has not repaid the amount
within the period of limitation. Therefore the complainant has
discharged the initial burden that was caste upon her and
consequently it is for the accused to rebut the presumption under
section 139 of N.I.Act and to show that the cheque in question
was not issued by her towards any legally enforceable debt or
liability and cheque does not contain her signature. The accused
is required to rebut the presumption not by plausible explanation
but by cogent evidence in support of her defence.
16. It is the specific case of the complainant that accused
had issued a post dated cheque bearing No.357219 drawn on City
Bank NA, dated 18/06/2015 for a sum of Rs.6,60,000/-. As per
the request of the accused the complainant presented the above
said cheque for encashment on 15/06/2015 through her banker
Canara Bank, DVG Road Branch, Basavanagudi, Bengaluru, but
the said cheque has been returned unpaid for the reason ‘account
closed’ as per memo dated 16/06/2015. In order to prove the said
contention the complainant has produced Ex.P1 cheque, Ex.P.2
Bank Memo, Ex.P.3 is legal notice Ex.P.4 postal receipt and
Ex.P.5 postal acknowledgment. Ex.P-3 is the notice issued by the
complainant dated 13/07/2015 to the accused. There is a
reference in Ex.P-5/postal acknowledgment regarding receipt of
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the notice by the accused. The contents of the Ex.P-3 notice
further indicates that the accused had issued cheque towards
the payment due.
17. The accused has urged a ground in the appeal Memo
to the effect that the complainant has filed the complaint in
respect of a time barred debt. It is the contention of the accused
that as per the version of the complainant loan was borrowed on
18/01/2012. But the cheque is dated 08/06/2015. Therefore, it
is clear that the cheque was issued after lapse of three years of the
lending of the amount by the complainant. Therefore, it is the
contention of the accused that complaint is not maintainable
since complaint has been filed in respect of a time barred debt.
18. It is true that as per the complaint averments loan was
borrowed on 18/01/2012. Admittedly cheque was issued on
8/06/2015. Therefore, the contention of the accused that cheque
was issued after lapse of three years from the date of lending of
amount appears to be true. Now, it is to be ascertained as to
whether it can be concluded that the complaint is not
maintainable since the complainant has filed the complaint in
respect of a time barred debt.
19. At this juncture it is necessary to go through the
judgment of Hon’ble Apex Court in Criminal appeal arising out of
SLP(Crl) 7455/2019 dated 06/09/2023 in the case of
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Crl.A.No.859/2020
K.Hymavathi Vs The State of Andhra Pradesh and Another,
wherein it is held that:
” From a perusal of legal position enunciated, it is
crystal clear that this court keeping in perspective the
nature of the proceedings arising under the NI Act and
also keeping in view that the cheque itself is a promised
pay even if the debt is barred by time, has in the
circumstance kept in view provision contained in Section
25(3) of Contract Act and has indicated that if the
question as to whether the debt or liability being barred
by limitation was an issue to be considered in such
proceedings, the same is to be decided based on the
evidence to be adduced by the parties since the
question of limitation is a mixed question of law and
facts. It is only in cases wherein an amount which is
out and out non recoverable, towards which a cheque is
issued, dishonoured and for recovery of which a
criminal action is initiated, question of threshold
jurisdiction will arise.
It is further held that :
” A perusal of the above extracted and emphasised
portion would indicate that the promise is to repay the
principal amount with the interest accrued within
December 2016. Hence, when the respondent had
agreed to repay the amount within December 2016, the
cause of action to initiate proceedings to recover the said
amount if not paid within December 2016 would arise
only in the month of December 2016. In that light, the
limitation would be as provided under Article 34 to the
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Crl.A.No.859/2020Schedule in the Limitation Act 1963 i.e., three years from
the date when the fixed time expires.”
20. In the case on hand the accused has executed hand
loan agreement as per Ex.P.6 wherein there is a recital that
accused agrees to redeem/repay the amount borrowed within one
year from the date of agreement. Therefore, the cause of action to
initiate proceedings accrues from 19/01/2013 from the date fixed
for repayment of the amount. Cheque is dated 08/06/2015.
Therefore, by applying the principles laid down in the above said
judgment, it can be safely concluded that it is not a time barred
debt and complaint is perfectly maintainable. Therefore, the
contention of the appellant that the complaint is filed in respect of
a time barred debt cannot be accepted.
21. The accused has taken a contention that PW-1 has
stated in her examination in chief that she has paid Rs.2,00,000/-
to the accused on 20/10/2011. During the subsistence of the
said loan she would not lend another loan of Rs.3,00,000/-.
Further, the complainant has no financial capacity to pay the
amount. At this juncture it is necessary to go through the cross
examination of DW-1 wherein accused has categorically admitted
her signature at Ex.P.6 hand loan agreement. When DW-1 has
categorically admitted her signature in the hand loan agreement
produced at Ex.P.6, it is the burden of the accused to disprove
the contents of Ex.P.6. The accused is not successful in
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disproving the execution of Ex.P.6 hand loan agreement. She has
also not produced any documents to disprove execution of Ex.P.6.
Therefore, the execution of Ex.P.6 stands proved in view of clear
admission given by the accused regarding her signature found in
Ex.P.6. On perusal of Ex.P.6, there is a clear recital to the effect
that the complainant had lent a sum of Rs.3,00,000/- as hand
loan and the accused agreed to repay the same within one year
from the date of agreement. Therefore, the accused is estopped
from contending that the complainant had no financial capacity to
lend a sum of Rs.3,00,000/- to him. Therefore, the said
contention of the accused cannot be accepted.
22. The accused has urged in the appeal memo that he had
not issued any cheque in favour of the complainant and the
signature found in Ex.P.1 cheque is not her signature. It is
pertinent to note that the accused had filed the application to refer
Ex.P.1 cheque and Ex.P.6 hand loan agreement to the expert for
his opinion before the trial Court and the same came to be allowed
by the trial Court on 19/07/2017. As per the order of the learned
Magistrate the Ex.P.1 and Ex.P.6 were forwarded to the expert for
his opinion and expert has submitted a report. I have perused the
report of the handwriting expert available on record wherein the
expert has given a opinion that the enclosed writings stamped and
marked Q1, Q2, S1 to S9 and S.10 to S.15 were all written by one
and the same person. It is pertinent to note that S1 to S9 are all
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the admitted signatures of the accused. Q1 is the signature found
in Ex.P.1 cheque. Q.2 is the signature found in Ex.P.6 loan
agreement. On perusal of the report of the expert it clearly
indicates that the signature at Ex.P.1(a) and Ex.P.6(a) tallied with
the admitted signatures at Ex.S1 to S9. Therefore, it is clear that
signature found in Ex.P.1 and Ex.P.6 are that of the accused. It is
also pertinent to note that during the cross examination of DW-1
she has categorically admitted her signature at Ex.P.6(a).
Therefore, it can be safely concluded that Ex.P.1 cheque contains
the signature of the accused at Ex.P.1(a). Therefore, the accused
has miserably failed to establish her defence that she has not
executed Ex.P.1 cheque and it does not bear her signature.
23. The accused has urged in appeal memo that she has not
received the legal notice issued by the complainant. The
complainant has produced Ex.P.5 postal acknowledgment to prove
the service of notice. It is pertinent to note that DW-1 during
cross examination has categorically admitted that she has
received summons from the Hon’ble Court. The address shown in
the complaint as well as address in the legal notice are one and
the same. When the accused has admitted that she has received
the summons, it is clear that she is residing in the address shown
in Ex.P.3 notice. When the complainant proved that he had
issued the notice to the known address of the accused, the burden
is upon the accused to prove that she has not received the notice,
but the accused has failed to prove the same. At this juncture it
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is necessary to go through a judgment of Hon’ble High Court of
Karnataka in Crl.R.P.No.814/2021 in the case of C.Niranjan
Yadav Vs D.Ravikumar wherein it is held that :
” What is to be looked into is, whether the address
of the accused which is known to the complainant
has been properly mentioned on the registered
cover. If it is sent to such registered address,
responsibility of the complainant would end and it
is for the accused to say as to why he could not
receive the cover. Law in this regard is well settled
by decisions rendered by the co-ordinate benches
of this court in the case of Fakirappa Vs
Shiddalingappa and another reported in ILR 2002
KAR 181 and Chikkachowdappa.”
In the case on hand the accused has received the notice as per
Ex.P.5. The complainant has also proved that she had issued the
notice to the last known address of the complainant.
23. It is the contention of the accused that Ex.P.1 cheque
was stolen by the brother of the complainant and same was
misused by the complainant. Though she has stated that she has
given complaint to the police, she has not produced the said
complaint or the acknowledgment received from the police.
Though she has stated that police have not given endorsement,
she could have filed private complaint in respect of the allegation
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of the theft of the cheque, but no such action seems to have been
taken by the accused. Apart from the above, the accused has
received the notice as per Ex.P.5. Inspite of receipt of notice she
has not replied the said notice stating regarding the theft of the
cheque by the brother of the complainant. The accused has not
explained as to what prevented her from issuing reply notice
narrating the said facts. Therefore, adverse inference can be
drawn against the accused. Except the defence of theft of the
cheque, the accused has failed to establish the said defence. At
this juncture it is necessary to go through a judgment rendered by
Hon’ble High Court of Karnataka in Crl.R.P.No.768 of 2018 in
the case of S.K.Honnappa Vs S.A.Murthy wherein it is held that:
” As a corollary to this, in order to hold the
defence version probable , the drawer of the cheque
must come out with his defence in his reply notice
and any defence introduced for the first time either
at the time when complainant or his witnesses are
cross examined or when he leads evidence does not
carry as much weight as it carries if there was
disclosure at the earliest point of time i.e., before
the criminal action is initiated.”
24. Inspite of receipt of notice he has not replied the notice.
Therefore, the contention taken by the accused during the cross
examination has no much weightage without the same being
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stated in the reply notice. Therefore, the above ruling is squarely
applicable to the facts of the case on hand.
25. It is the case of the accused that complainant has
misused the cheque. The burden is upon the accused to prove
that cheque was misused by the complainant by producing cogent
evidence. The accused was at liberty to take any legal action
against the complainant if the cheque was misused. But, no
such steps were taken by the accused alleging that cheque was
misused by the complainant. She has categorically stated during
the cross examination that she has not taken any legal action
against the complainant alleging that she has misused the
cheque. Therefore, there are no materials to substantiate the said
contention of the accused. The available materials on record
probabalises the case of the complainant. The accused has failed
to raise a probable defence and also failed to rebut the
presumption available in favour of the complainant.
26. At this juncture it is worthwhile to go through a
judgment reported in AIR (2010) 11 Supreme Court Cases 441,
1898, in the case of Rangappa Vs. Mohan, wherein by relying
upon the ruling of Hithen P Dalal Vs. Bratheendranath
Banerji, it is reiterated that once the accused admits his
signature the legal presumption will have to be raised in favour of
the complainant. The accused can prove non-existence of a
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consideration by raising a probable defence. In the case on hand
the accused has failed to raise probable defence.
27. In a proceeding under section 138 of N.I. Act it is for
the accused to prove that cheque was not issued towards legally
recoverable debt or liability. She has to lead credible evidence for
rebuttal of this presumption. The presumption under section 139
of N.I.Act is a presumption of law, it is not the presumption of
fact. This presumption has to be raised by the Court in all the
cases. Once the factum of dishonour is established, the onus to
rebut the presumption lies on accused and such evidence must be
sufficient, cogent, and to be proved beyond all reasonable doubt.
Therefore mere explanation is not enough to repel this
presumption of law. In the present case the complainant has
discharged her initial burden that the accused had issued the
cheque in question in her favour and the same were dishonoured.
she has also complied with the mandatory provisions prescribed
by law. Such being the case, burden is upon the accused to prove
that the cheque was not issued towards any legally recoverable
debt.
28. The cumulative effect of oral as well as documentary
evidence produced by the complainant is that the accused has
issued issued a cheque bearing No.357219 drawn on City Bank
NA, dated 18/01/2015 for a sum of Rs.6,60,000/- and when
complainant presented the said cheque for encashment on
15/06/2015 through her banker Canara Bank, DVG Road
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Branch, Basavanagudi, Bengaluru, said cheque has been returned
unpaid for the reason ‘account closed’ as per memo dated
16/06/2015 and the accused has failed to make payment within
stipulated period prescribed by law. Accordingly point Nos.1 and
2 are answered in the Affirmative.
29. Point No.3: The trial Court has passed the judgment
of conviction against the accused and sentenced him to pay a fine
of Rs.6,75,000/- and in default to pay fine ordered him to undergo
simple imprisonment for a period of three months by considering
oral as well as documentary evidence produced before it. The
learned trial Court has referred the judgment of the Hon’ble Apex
Court reported in (2010) 11 SCC 441 observed that the accused
has failed to rebut the resumption and also not able to prove lost
cheque theory and not accepted defence of the accused. The trial
Court has considered all the defence taken up by the accused in
its right perspective. The trial Court has considered the oral as
well as the documentary evidence in its right perspective, therefore
I find no perversity or error of judgment on the part of the learned
Magistrate in convicting the accused. On perusal of the judgment
of the trial Court there is no scope to interfere with the well
reasoned judgment of the learned trial Court. Therefore point
No.3 is answered in the Negative.
30. Point No.4:- In view of the findings given on point No.1
to 3, I proceed to pass the following:-
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ORDER
The appeal filed by the appellant
under section 374 of Code of Criminal
Procedure is dismissed.
The judgment of conviction passed
by the trial Court in C.C.No.24915/2015
dated 04/11/2020 passed by XVI ACMM,
Bengaluru is hereby confirmed.
Office is directed to transmit the
records to the trial Court along with the
copy of this order.
(Dictated to the Stenographer Grade-I, Online, typed by her directly on
computer, corrected and then pronounced by me in the Open Court on this
9th day of January, 2025)(JAYAPRAKASH. A)
LXVI Addl. City Civil & Sessions
Judge, Bengaluru
22
Crl.A.No.859/2020Pronounced vide separate order with
following operative portion:
ORDER
The appeal filed by the appellant
under section 374 of Code of Criminal
Procedure is dismissed.
The judgment of conviction passed
by the trial Court in
C.C.No.24915/2015 dated
04/11/2020 passed by XVI ACMM,
Bengaluru is hereby confirmed.
Office is directed to transmit the
records to the trial Court along with
the copy of this order.
LXVI Addl. CC & SJ,
Bengaluru