CC.137-16 1 JMFC, KPM
IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS ::
KUPPAM
Present: Sri N. Sirish, B.A.,B.L,
Judicial Magistrate of First Class, Kuppam.
Dated this the 30 th day of March, 2017
CC.NO: 137 of 2016
Between:-
Smt.Usha Rani, W/o T.R.Sreenivasulu, Housewife, R/at D.No.12-16/2, Ramachandra Road, Kuppam Town and Post.
… Complainant. And:- R.Uday Kumar, S/o Raghupathi, Working in filter point, Gramapanchayath Office, Kuppam Town and Post. …. Accused.
This case is coming before me for final hearing on 23.03.2017 in the presence of Sri Siddavatam Nagaraja and Sri R.Anil Kumar, the learned counsel for the complainant and of Sri T.V.Subramanyam, the learned counsel for the accused, upon perusing the material papers on record and having stood over for determination till this day, this court delivered the following:
J U D G M E N T
1. This is a complaint filed under section u/sec 200 of the Code of
Criminal Procedure (Cr.P.C), seeking punishment of the accused for the offence punishable U/sec.138 of the Negotiable Instruments Act, 1882 (hereinafter referred to as 'the Act', for brevity).
2.The background facts in a nutshell leading to filing of this complaint by the complainant are:- The complainant and the accused are family friends to each other since five to ten years, and thus they have been helping each other in case of necessity. The accused is working at Filter Point in
Gramapanchayath Office, Kuppam. The accused’s wife is an employee in
Southern Railways. In view of their closeness, the accused and his wife approached the complainant in the month of June, 2013 and requested her
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to lend a sum of Rs.4,00,000/- (Rupees four lakhs only), as hand loan in order to meet their urgent needs. Accordingly, the complainant, after consulting with her family members, had paid the accused the said sum of
Rs.4,00,000/- on 20.06.2013 and the accused requested time of two months for the repayment. On the same day, the accused had issued a postdated cheque bearing No.448399 for Rs.4,00,000/- dt.22.07.2013, drawn on
Canara Bank, Kuppam Branch with S/B Account Number 2714101016789.
Subsequently, as per the accused’s request, the complainant presented the said impugned cheque through her banker Andhra Bank, Kuppam Branch for encashment on 22.08.2013. However, the cheque was returned with return memo dt.23.08.2013 for the reason 'Funds Insufficient’. The complainant had then issued notice to the accused in this regard on 12.09.2013 and the accused had received the said legal notice on 26.09.2013, who got issued a reply notice dt.07.10.2013 with false and untenable allegations, without
honouring the impugned cheque within the statutorily prescribed period in
the manner contemplated under section 138 of the Act. Following these developments, the complainant had filed the present complaint against the accused.
3. Considering the complaint and material on record, the case was taken on file for the offence punishable U/sec.138 of the Act. In response to the process issued, the accused made his appearance before the Court. When he was examined under Section 251 of the Code of Criminal Procedure with reference to the allegations made in the complaint, he denied the same, pleaded not guilty and claimed to be tried.
4.Initially, the complaint was registered as STC.No.03/2014 and subsequently, the same was converted to a Calendar Case as per the docket order dt. 06.04.2016.
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5.To substantiate the accusation, the complainant got herself examined as PW.1 and got marked the cheque bearing No.448399 dt:22.07.2013 for
Rs.4,00,000/- (Ex.P1); the counterfoil dt.22.08.2013 (E.xP2) showing that
Ex.P1 was presented at her bank; the cheque return memo dt:23.08.2013 (Ex.P3) in respect of Ex.P1; the office copy of legal notice dt:12.09.2013 (Ex.P4); served postal acknowledgment (Ex.P5) of Ex.P4 and the reply notice dt:07.10.2013 (Ex.P6).
6.After closure of evidence of the complainant, the accused was examined U/s.313 Cr.P.C. with regard to incriminating material evidence, for which he stated it to be false. Though, he had stated that he has defence evidence, he did not choose to adduce evidence.
7.Heard the arguments of the learned counsel for the complainant and the accused.
8.In the wake of rival contentions, the following points arise for determination in this case.
1) Whether the complainant has discharged her initial burden that the accused had issued Ex.P1 (impugned cheque) in discharge of a legally enforceable debt, and if so the accused could
able to rebut the same?
2) Whether the complainant has proved the guilt of the accused for the offence U/sec.138 of the Act in respect of Ex.P1, beyond all reasonable doubt?
9. Points 1 and 2: The complainant as PW.1, in the chief affidavit filed in lieu of her chief examination, had reiterated the averments of her complaint, stated above. In her cross examination, it was elicited by the accused that there were prior money transactions between her and the accused. It was suggested to the complainant by the accused that her husband had intimidated the accused and highhandedly obtained Ex.P1- cheque in respect of the earlier money transactions, from the accused and
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that she did not lend any amount much less Rs.4,00,000/- to the accused, and the said suggestion was categorically denied. The complainant had also categorically denied the suggestion that she never had capacity to lend a sum of Rs.4,00,000/- and there is no legal enforceable debt between her and the accused and that the impugned cheque was highhandedly obtained by her husband.
10. The following facts were elicited by the accused in the cross examination of the complainant:
i)Her husband is working at Archana Granites, Kuppam and his monthly salary of Rs.4,000/- or Rs.5,000/-; ii)Her husband is the only earning member of her family; iii)She and her family members are depending upon her husband for their livelihood; iv)Her husband owned a house building at Kuppam and the same was converted into her name and the said house was subsequently sold;
v)The above said house was sold only some days prior to the date of borrowing of money by the accused from her and the said amount was given by her to the accused out of the sale proceeds of the said house; vi)The accused has knowledge about the said sale and as such approached her and requested her to lend money; vii)The contents of Ex.P1 were already filled by the time the accused came to her house and gave it to her.
11. The learned counsel for the complainant argued that in view of the suggestions put to the complainant in her cross examination by the accused, it is evident that the accused himself is admitting his signature on Ex.P1 and about the impugned cheque pertains to his account, the complainant is entitled to the presumption under section 139 of the Act and therefore, the burden is upon the accused to prove that he had issued the impugned cheque – Ex.P1 as the complainant’s husband had intimidated him, as
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suggested by him to the complainant in her cross examination. The learned counsel for the complainant had further argued that as the accused did not adduce any evidence on his behalf, he is liable to be convicted. Per contra, the learned counsel for the accused would argue that the complainant never had capacity to lend a sum of Rs.4,00,000/- and the facts that were elicited by the accused in the cross examination of the complainant, will clearly show that the complainant or her family members never had such capacity. The learned counsel for the accused would further maintained that the accused need not adduce any evidence and he can make use of the material available on the record and the facts that were elicited in the cross examination of the complainant.
12. Before proceeding further, this Court feels it apposite to cite a decision of the Hon’ble Supreme Court of India in Rangappa vs. Sri Mohan (AIR 2010 SC 1898), in order to know whether the presumption under section 139 of the Act includes the existence of a legally recoverable debt and whether the accused has to lead any positive evidence in support of his case. Para 14 of the said Judgement is relevant and their Lordships have held as follows:
“14. In the light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by section 139 of the Act does indeed include the existence of legally enforceable debt or liability. To that extent, the impugned observations in 'Krishna Janardhan Bhat' case may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttal presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable
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instruments. While section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttal presumption under section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139 , the standard of proof for doing so is that of `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not
need to adduce evidence of his/her own.”
13. Thus, it was held by their Lordships that the presumption U/s.139 of the Act, is a mandatory presumption and it includes the existence of a legally enforceable debt or liability. Further, it was also held that the accused, in order to rebut the said presumption U/s.139 of the Act, need not necessarily adduce evidence on his behalf and that he can make use of the materials on record, and that it is sufficient if the accused raises a probable defence, and the standard of proof is that of “preponderance of probabilities”
14. Thus, in view of the legal position decided in the Rangappa’s case, stated above, the complainant is entitled to the presumption as mandated in sec 139 of the Act, if he proves that the cheque (Ex.P1) issued by the accused is bounced. As already stated, by virtue of the suggestion by the accused to the complainant in her cross examination that the complainant’s husband had obtained the impugned cheque from him in respect of earlier
CC.137-16 7 JMFC, KPM
money transactions, the accused is admitting his signature in Ex.P1.
Further, a perusal of the reply notice dt.07.10.2013 (Ex.P6) of the accused, it is evident that the accused is admitting his signature on Ex.P1 and that the same was handed over by him to the complainant. It is the version of the accused as per Ex.P6, that he had borrowed a sum of Rs.2,00,000/- from the complainant in the year 2012, to meet the medical expenses of his wife, who fell ill and that he has been paying interest on the said amount of
Rs.2,00,000/- at 5 % p.a. till the last year and that he had promised the complainant that he will be repaying the said amount of Rs.2,00,000/- after the house belonging to his joint family is sold. The para No.3 of Ex.P6 is extracted for better appreciation.
“3. My client states that your client made him to issue a cheque forcibly knowing well my client do not have money in the bank with an ulterior motive to make him liable in criminal liability,
There is no intention on my client. The amount due to your client shall be discharged within a short period as soon as the sale of his joint family house is negotiated. Therefore, please advise your client accordingly.”
Thus, it is evident and manifest that the accused is admitting that the impugned cheque was handed over by him to the complainant and he is not disputing the contents of the impugned cheque. That is to say, it is not the accused’s version that he had issued only a blank cheque and the same has been fabricated by the complainant. Therefore, the presumption under section 139 of the Act comes into play, which mandates a presumption that the impugned cheque (Ex.P1) pertained to a legally enforceable debt or liability. Now, the onus is upon the accused to rebut the said presumption and it has to be seen whether the accused could prove that his defence is probable, and it is sufficient for the accused to prove his case by preponderance of probabilities.
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15. The accused’s contention is that the complainant or her family members never had capacity to lend him a sum of Rs.4,00,000/- and as such his case that the impugned cheque was obtained by the complainant’s husband by intimidating him is to be believed. It is the contention of the accused that the fact that the complainant’s husband is the sole earning member of their family and he is earning only a sum of Rs.4,000/- p.m. or
Rs.5,000/- p.m. is sufficient to believe the accused’s plea. It is already mentioned that the accused could elicit in the cross examination of the complainant, that she had lend the said amount of Rs.4,00,000/-, in respect of which Ex.P1 was issued by the accused, from sale proceeds of her house, which took place some days prior to the accused borrowing money from her.
The accused did not even suggest the complainant that she does not own any house building and she never sold the said house building. Further, the accused did not even dispute the capacity of the complainant to lend the said amount of Rs.4,00,000/- in his reply notice (Ex.P6) and on the other hand, the said reply notice (Ex.P6) would reveal that the complainant was having sufficient capacity to lend the said amount, as the accused himself admitted in the said reply notice that he had borrowed a sum of
Rs.2,00,000/- from the complainant in the year 2012. Thus, the accused failed in proving his plea that the complainant or her family members never had capacity to lend a sum of Rs.4,00,000/-. Admittedly, the accused did not initiate any criminal proceedings against the complainant or her husband, for the alleged act of their intimidating him and obtaining the impugned cheque from him. No person of ordinary prudence would remain quiet without initiating criminal proceedings against a person who had intimidated him and obtained a cheque duly signed by him, though the other person gives a notice that criminal proceedings will be initiated if he fails to pay the amount covered under the impugned cheque. This act of the
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accused remaining silent will only leads to the inference that the impugned cheque was issued by him to the complainant as contended by the complainant. Thus, the accused had failed to rebut the statutory presumption under section 139 of the Act even with regard to the materials submitted by the complainant. Consequently, the accused is to be held liable for the offence punishable U/s.138 of the Act.
16. Thus, it is found that the complainant could prove that the Ex.P1 (impugned cheque) was issued by the accused to him in discharge of a legally enforceable debt, and that the accused has failed in rebutting the mandatory presumption U/s.139 of the Act, and thereby the accused is found guilty and is liable to be convicted. Accordingly, both the points are answered in complainant's favour and against the accused.
17. In the result, the accused is found guilty for the offence punishable
U/s.138 of the Act and accordingly, he is convicted U/s.255 (2) of Cr.P.C.
Judicial Magistrate of First Class,
Kuppam.
When the accused is questioned regarding the quantum of sentence to be imposed, he submitted that he is a temporary employee at Gram
Panchayath Office, Kuppam and he is earning only a sum of Rs.5,000/- per month and that he is having a sick and old aged mother and he is the only person to look after her and his family members; and hence, prayed to take a lenient view. The complainant submits that no lenient view is to be taken against the accused as he has not paid any amount even after filing of the present complaint. This court is conscious that legislation has incorporated section 138 of the Act to curb the practices of issuing cheques without any funds and to bring harmony in business transactions.
Further, the Hon’ble SUPREME COURT in a decision reported in 'S.Suresh Kumar Vs. Jagadeeshan' - [2002(1) ALD (Crl) 417] held that- “it should be the look out of the trial court Magistrate that the sentence for the offence under section 138 of Negotiable Instruments Act, 1881 should be of such a nature as to give proper effect to the object of the legislation. No drawer of the cheque can be allowed to take dishonor of the cheque issued by him light heartedly. The very object of the enactment of the provisions
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like 138 of Negotiable Instruments Act, 1881 would stand defeated if the sentence is flee bite in nature. It is a different matter, if the accused is paid the amount at least during the pendency of the case.”
In view of the above decision, the submissions of the complainant and also in view of the circumstances of this case, this Court is of the considered view that this is not a fit case to release the accused under sections 3 or 4 of the Probation of Offenders Act, 1958, and that this is not a fit case to take a lenient view.
Further, there used to be some discussion as to whether the default sentence can be imposed for non payment of compensation. The said discussion is settled at rest and it has been held by the Hon'ble SUPREME
COURT in 'K.A. Abbas H.S.A. vs Sabu Joseph & Anr.' [2010 STPL (Web) 384
S.C (D.B)] arising out of S.L.P (Crl) No. 334 of 2008, that default sentence can be imposed for non payment of compensation.
Accordingly, the accused is sentenced to suffer Simple
Imprisonment for a period of ONE year and he is directed to pay a
compensation of Rs.4,00,000/- (Rupees Four lakhs only) under
section 357 (3) of Cr.P.C., to the complainant in this case and in
default to suffer Simple Imprisonment for a period of three months.
The accused was under detention from 27.08.2015 to 30.08.2015 (both days inclusive) and the said period of four days is set off against the said imprisonment, as provided U/s.428 of the Cr.P.C.
This court explained the right of appeal to the accused. The accused stated that he has means to engage a counsel in the Appellate Court. The
Bail bonds of the accused stand canceled. Office is directed to prepare conviction warrant and also to provide a copy of this judgment, free of cost to the accused forthwith.
Typed directly to my dictation by the Personal Assistant, corrected and pronounced by me in open Court, this the 30 th day of March, 2017.
Sd/- N. Sirish
Judicial Magistrate of First Class,
Kuppam.
CC.137-16 11 JMFC, KPM
APPENDIX OF EVIDENCE.
WITNESSES EXAMINED FOR
COMPLAINANT ACCUSED:
P.W.1- Usha Rani - None –
EXHIBITS MARKED ON BEHALF OF COMPLAINANT:
Ex.P.1: Cheque bearing No.448399 dt.22.07.2013 for Rs.4,00,000/-.
Ex.P.2: The counterfoil dt.22.08.2013 showing that Ex.P1 was presented at complainant’s bank
Ex.P3- The cheque return memo dt:23.08.2013 in respect of Ex.P1
Ex.P4- Office copy of legal notice dt:12.09.2013.
Ex.P5- Served postal acknowledgment of Ex.P4.
Ex.P6- The reply notice dt:07.10.2013.
EXHIBITS MARKED ON BEHALF OF ACCUSED: Nil.
Material objects: Nil.
Sd/- N. Sirish
Judicial Magistrate of First Class,
Kuppam.
…
CC.137-16 12 JMFC, KPM
IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS :: KUPPAM
CALENDER in C.C.NO: 137 of 2016
Dis. No. Date:
Date of Offence 28.03.2013 Date of Report or Complaint 05.11.2013 Date of taken on file 07.12.2013 and same case was converted as CC on 06.04.2016 Date of apprehension of accused 24.04.2014
Explanation for delay in disposal of -- the case. Date of commencement of trial 07.06.2016 Date of close of trial 30.08.2016 Date of Sentence or Order 30.03.2017 Smt.Usha Rani, W/o Complainant T.R.Sreenivasulu, Housewife, R/at D.No.12-16/2, Ramachandra Road, Kuppam Town and Post. Name of the accused:
R.Uday Kumar, S/o Raghupathi, Working in filter point, Gramapanchayath Office, Kuppam Town and Post.
Nature of offence Negotiable Instrument Act Section of law U/sec.138 of the N.I.Act Plea of accused Pleaded not guilty Finding of the Court. Accused is found guilty In the result, the accused is found guilty for the Sentence or order offence punishable U/s.138 of the Act and accordingly, he is convicted U/s.255 (2) of Cr.P.C. When the accused is questioned regarding the quantum of sentence to be imposed, he submitted that he is a temporary employee at Gram Panchayath Office, Kuppam and he is earning only a sum of Rs.5,000/- per month and that he is having a sick and old aged mother and he is the only person to look after her and his family members; and hence, prayed to take a lenient view. The complainant submits that no lenient view is to be taken against the accused as he has not paid any amount even after filing of the present complaint. This court is conscious that legislation has incorporated section 138 of the Act to curb the practices of issuing cheques without any funds and to bring harmony in business transactions.
Further, the Hon’ble SUPREME COURT in a decision reported in 'S.Suresh Kumar Vs. Jagadeeshan' - [2002(1) ALD (Crl) 417] held that- “it should be the look out of the trial court Magistrate that the sentence for the offence under section 138 of Negotiable Instruments Act, 1881 should be of such a nature as to give proper effect to the object of the legislation. No drawer of the cheque can be allowed to take dishonor of the cheque issued by him light heartedly. The very object of the enactment of the
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provisions like 138 of Negotiable Instruments Act, 1881 would stand defeated if the sentence is flee bite in nature. It is a different matter, if the accused is paid the amount at least during the pendency of the case.”
In view of the above decision, the submissions of the complainant and also in view of the circumstances of this case, this Court is of the considered view that this is not a fit case to release the accused under sections 3 or 4 of the Probation of Offenders Act, 1958, and that this is not a fit case to take a lenient view.
Further, there used to be some discussion as to whether the default sentence can be imposed for non payment of compensation. The said discussion is settled at rest and it has been held by the Hon'ble SUPREME COURT in 'K.A. Abbas H.S.A. vs Sabu Joseph & Anr.' [2010 STPL (Web) 384 S.C (D.B)] arising out of S.L.P (Crl) No. 334 of 2008, that default sentence can be imposed for non payment of compensation.
Accordingly, the accused is sentenced to suffer Simple Imprisonment for a period of ONE year and he is directed to pay a compensation of Rs.4,00,000/- (Rupees Four lakhs only) under section 357 (3) of Cr.P.C., to the complainant in this case and in default to suffer Simple Imprisonment for a period of three months. The accused was under detention from 27.08.2015 to 30.08.2015 (both days inclusive) and the said period of four days is set off against the said imprisonment, as provided U/s.428 of the Cr.P.C.
This court explained the right of appeal to the accused. The accused stated that he has means to engage a counsel in the Appellate Court. The Bail bonds of the accused stand canceled. Office is directed to prepare conviction warrant and also to provide a copy of this judgment, free of cost to the accused forthwith.
Sd/- N. Sirish
Judicial Magistrate of First Class,
Kuppam. // True copy//
JMFC, KPM.