Bangalore District Court
Smt.Geetha.G vs Smt. Manjula on 8 March, 2022
IN THE COURT OF THE XVIII ADDL.CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
PRESENT: MANJUNATHA M.S. B.A., LL.B.
XVIII ADDL.C.M.M., BANGALORE
DATED : THIS THE 8th DAY OF MARCH 2022
Criminal Case No.13637/2019
COMPLAINANT: Smt.Geetha.G.
W/o Kumar,
Aged about 39 years,
R/at No.618, 4th Main Road,
Attur, Yelahanka New Town,
Bangalore-560 064.
(By Sri.G.R.R.- Advocate)
// Versus //
ACCUSED: Smt. Manjula,
W/o Mahesh,
Aged about 48 years,
R/at No.262, 4th Main Road,
2nd cross Attur Layout,
Yelahanka New Town,
Bangalore-560 064.
(By Sri.V.A - Advocate)
Offence complained : U/Sec.138 of Negotiable
Instrument Act.
Name of the complaint : Smt.Geetha,
W/o Kumar
Date of commencement
of evidence : 14-08-2019
2 Judgment C.C.13637-2019
Date of closing evidence : 16-11-2021
Opinion of the Judge : Accused not found guilty.
(MANJUNATHA M.S.)
XVIII A.C.M.M.,BANGALORE.
JUDGMENT
The complainant has filed this complaint under section 200 of code of criminal procedure read with section 138 of the Negotiable Instruments Act (in short referred as "N.I. Act") against the accused alleging that she has committed the offence punishable under section 138 of NI Act.
02. The sum and substance of the complaint is as follows; The complainant and accused are well known to each, on such acquaintance in the 1st week of January 2018, the accused has approached the complainant for hand loan of Rs.7,00,000/- for purpose of educational expense of her children. Considering her request, the complainant has paid Rs.7,00,000/- by way of cash on 07-01-2018. Again the accused approached the complainant in the 2nd week of October 2018 and requested for hand loan of 3 Judgment C.C.13637-2019 Rs.8,00,000/- for purpose of purchase of a site and complainant has paid Rs.8 lakhs to the accused on 18-10-2018. At the time of receiving the amount the accused has promised to return the same on or before 31-01-2019, but she has not to kept up her promises. On repeated demand and request accused has issued a cheque for Rs. 15,00,000/-, bearing No. 962505 dated 27-03-2019, drawn on Syndicate Bank, Yelahanka New Town Branch, Bengaluru towards discharge of debt and also promised that the cheque will be honoured on its presentation. As per the assurance of the accused, the complainant has presented the said cheques for encashment through her banker i.e., State Bank of India, Attur Layout Branch,Bengaluru and it was returned unpaid with an endorsement "CHEQUE IRREGULARLY DRAWN" dated 30-03-2019. The same was informed to the accused and accused has expressed her financial difficulties and dodged time for one or the other reasons. Thereafter, the complainant has got issued demand notice on 04-04- 2019 to the accused by demanding the payment of cheque amount. The said notice was duly served on the accused. Despite of the demand notice the accused has not paid the cheque amount and 4 Judgment C.C.13637-2019 thereby she has committed an offence punishable under section 138 of N I Act.
03. After filing of complaint, this court has taken cognizance of the offence punishable under section 138 of Negotiable Instrument Act, sworn statement of the complainant was recorded. Being satisfied that there are prima-facie materials to proceed against accused, summons was issued. After appearance, the accused was enlarged on bail and his plea was recorded as per section 251 of Cr.P.C. The accused has not pleaded guilty but submitted that she has defense to make.
04. As per the direction of Hon'ble supreme court in "Indian Bank Association V/s Union of India and others reported in (2014) 5 SCC 590, the sworn statement of the complainant treated as complainant evidence and complainant has examined herself as PW1 by filing affidavit of chief examination and got marked Ex.P.1 to 6. The accused has filed application under section 145(2) of NI Act for recall of PW1 for the purpose of cross-examination. The said application came to be allowed and defence counsel has fully cross- examined PW1. After completion of complainant's evidence, the 5 Judgment C.C.13637-2019 statement of accused as contemplated under section 313 of code of criminal procedure was recorded. The accused has denied all the incriminating material appears against her in the complainant's evidence. To prove her defence the accused herself examined has DW1 and marked Ex.D.1 to 6.
05. The Complainant counsel filed written argument. Heard the argument of defence counsel. Perused materials on record, written argument and decisions relied by both side.
06. The points that arise for my consideration are as follows;
1. Whether the complainant has proves that the accused has issued cheque No.962505 dated 27-03-2019 for Rs.15,00,000/- towards discharge of her liability, which was returned unpaid on presentation for the reason "CHEQUE IRREGULARLY DRAWN" and despite of notice She has not paid the cheque amount and thereby committed an offence punishable under section 138 of Negotiable Instruments Act?
2. What Order?
07. My answer to the above points is as follows;
Point No.1: In the Negative.
6 Judgment C.C.13637-2019 Point No.2: As per final order for the following REASONS
08. POINT No.1: The Complainant has filed this complaint alleging that the accused has committed offence punishable under section 138 of N.I. Act. The complainant has pleads and asserts that, the accused borrowed hand loan of Rs. 15 lakhs and towards discharge of her liability she has issued cheque in question for Rs.15,00,000/-. On presentation, the said cheque was returned unpaid with an endorsement "CHEQUE IRREGULARLY DRAWN". Thereafter got issued demand notice within time stipulated calling upon the accused to pay the amount covered under cheque. Despite of notice, the accused has not paid the amount within 15 days, which gave raise cause of action to file this complaint.
09. To substantiate her case, the complainant has stepped into witness box and examined as PW.1 and got marked Ex.P-1 to Ex.P- 6 . PW1 has reiterated the contents of the complaint in her affidavit evidence about lending of amount of Rs.15,00,000/- to the accused, issuance of cheque by the accused towards discharge her liability and its dishonour, issuance of legal notice to the accused calling 7 Judgment C.C.13637-2019 upon her to pay the amount covered under cheque and his failure to comply the same.
10. In this scenario, let me scrutinize the documents relied by complainant in order to examine the compliance of statutory requirements envisaged under section 138 of N.I. Act. Ex.P.1 is cheque dated 27-03-2019, the said cheque was returned unpaid with an endorsement "CHEQUE IRREGULARLY DRAWN". as per Ex.P.2 bank endorsement dated 30-03-2019, Ex.P.3 is legal notice dated 04-04-2019 under which the complainant has demanded the payment of cheque amount, Ex.P.4 is postal receipt, Ex.P.5 is Complaint given to Post Master, Postal Department, Ex.P.6 is Postal track consignment details.
11. The contention of the accused is that the cheque in question was dishonored for the reason "Cheque irregularly drawn". It is argued on behalf of accused that the reason of dishonor i.e "Cheque irregularly drawn" does not fall within the ambit of the provision of sec. 138 of N.I Act. In banking practices the proforma or return memo is given by the bank for the return of the cheque. Said proforma is used only to indicate that the cheque is not honoured for a particular reason mentioned therein. A person in whose favour the 8 Judgment C.C.13637-2019 cheque has been issued is entitled to have that amount provided there is sufficient amount to the credit of that account. Following the dishonor of cheque a notice has to be issued to the person who has issued the cheque inviting his attention to the fact that the cheque has been dishonored for the reason stated in the bank memo and that he is liable for penal consequence under the provision of sec. 138 N. I. Act. When the reason for the return of the cheque has been mentioned in bank returning memo then it is primary duty of drawer of the cheque to make the payment of the said cheque amount to the payee within 15 days of the receipt of the said notice, and he fail to comply with clause (c) of the sec. 138, the filing of the complaint within a month from the date of cause of action is also provided for under clause (b) section 142 of the Act. Thus, a notice has to be given to the drawer and the notice is condition precedent. That means, the drawer of the cheque has got an opportunity to know in advance before filing of the complaint the cheque was dishonored for a particular reason. When that information was already available with him and when he has not made any attempt to pay the same, it cannot be said that the cheque was returned not for insufficiency of funds or funds not arranged for. When an opportunity has been 9 Judgment C.C.13637-2019 given to the drawer of the cheque by inviting his attention and when he has not paid the amount, it has to be construed that "Cheque irregularly drawn", ultimately, resulting in the dishonoring of the cheque and preventing the payee from getting amount which is only on the account of the act committed by the drawer who has given the cheque. The drawer of the cheque himself is prima facie answerable for the dishonor of cheque. In the present case also after dishonour of cheque, the complainant has issued demand notice to the accused and she has not paid the cheque amount. Furthermore the accused has not produced any bank statement to show that she had sufficient amount in her account to honour the cheque when the said cheque was presented. Therefore, under such circumstance the cheque dishonoured for the reason "Cheque irregularly drawn", also fall under the provision of sec. 138 of N. I Act.
12. A careful scrutiny of the documents relied by the complainant goes to show that, statutory requirements of section 138 of N.I. Act have been complied with and this complaint is filed within time. Thus, complainant is entitle to relied on the statutory presumptions enshrined under section 118 read with section 139 of N.I. Act. Section 118 reads as here: - "That every negotiable instrument was 10 Judgment C.C.13637-2019 made or drawn for consideration and that every such instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration". Further Section 139 of the Negotiable Instruments Act provides for presumption in favour of a holder. It reads as here: - "It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in section 138, for the discharge, in whole or in part, or any debt or other liability." A combined reading of above said sections raises a presumption in favour of the holder of the cheque that he has received the same for discharge in whole or in part of any debt or other liability.
13. No doubt, the said presumptions of law are rebuttable in nature. The accused can take probable defence in the scale of preponderance of probability to rebut the presumption available to the complainant. Let me examine whether the accused has successfully rebutted the said presumptions of law. The accused has specifically denied availing of hand loan of Rs.15,00,000/- from the complainant and issuance of Ex.P.1 cheque for repayment of the said amount. The accused has put forth her defence that she had lost 11 Judgment C.C.13637-2019 cheque book from his house. The complainant had somehow or other got possession of the said cheque book and converted one cheque leaf into Ex.P1. Hence section 138 of NI Act is not at all attracted to the cheque in question. The accused also questioned the financial capacity of the complainant to lend such huge amount of Rs.15 lakhs at the relevant point of time and she further contended that she had no necessity to borrow such huge amount at the relevant point of time.
14. In this back drop of the rival contention, this court has given anxious consideration to the materials available on record and the written argument filed by complainant counsel. At the outset, it is pertinent to mentioned that the accused has admitted that Ex.P.1 cheque belongs to her and it contained her signature. When the drawer has admitted the issuance of cheque and signature thereon, then the presumption envisaged under section 118 read with section 139 of NI Act would operate in favour of the complainant. The said provisions lays down a special rule of evidence applicable to negotiable instruments. The presumption is one of law and thereunder the court shall presume that the instrument was endorsed 12 Judgment C.C.13637-2019 for consideration. So also, in the absence of contrary evidence on behalf of the accused, the presumption under section 118 and 139 of the NI Act, goes in favour of the complainant. No doubt, said statutory presumptions are rebuttable in nature. As discussed earlier, when the complainant has relied upon the statutory presumptions enshrined under section 118 read with section 139 of NI Act, it is for the accused to place the cogent and probable defence to rebut the presumptions raised in favour of the complainant. To put it other way, the burden lies upon the accused to prove that Ex.P.1 cheque was not issued to the complainant for discharge of any debt or liability but the complainant has missued her lost cheque. It is worth to note that, Section 106 of Indian Evidence Act postulates that, the burden is on the accused to establish the fact which is especially within his special knowledge. This provision is exception to the General Rule that, the burden of proof is always on the prosecution to establish their case beyond all reasonable doubt. In that view of the matter, the burden is on the accused to prove that the cheques in question not issued for discharge of any liability.
13 Judgment C.C.13637-2019
15. As far as proof of existence of legally enforceable debt is concerned, it is profitable to refer the decision of full bench of the Hon'ble Apex Court reported in Rangappa Vs. Mohan reported in AIR 2010 SC 1898, Wherein their lordships pleased to observe that, "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 the legally enforceable debt or liability". In another decision reported in, (2015) 8 SCC 378 in the case of Vasanthakumar Vs. Vijayakumari, it is held that once the accused has admitted the issuance of Cheque as well as signature on it, the presumption under section 139 would be attracted. In K.N. Beena Vs Muniyappan and another reported in (2001) 8 SCC 458, the Hon'ble Apex Court, refers to Hiten P. Dalal Vs. Bratindranath Banerjee and holds, on the factual matrix, that bare denial of the liability in reply notice is not sufficient to shift the burden of proof on the complainant to prove that the cheque was issued for a debt or liability. In view of the law laid by the Hon'ble Apex Court, the presumption enshrined under section 139 of the N.I. Act is extendable to the existence of legally enforceable debt. The story brought by the accused is unworthy of credit and not 14 Judgment C.C.13637-2019 supported by any acceptable evidence. In other words, accused has not placed cogent material to rebut the said presumption. As such, the contention of the accused holds no water. The Hon'ble Supreme Court of India pleased to discuss aforesaid aspect in detail in the decision reported in, Rangappa Vs. Mohan reported in AIR 2010 SC 1898. It is relevant to reproduce said observations; "Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the court in favour of the complainant. The presumption referred to in Section 139 of the NI Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption. What is required to be established by the accused in order to rebut the presumption is different from each case under the given circumstances. But the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. In other words, the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the court. The defence raised by the accused was that a blank 15 Judgment C.C.13637-2019 cheque was lost by him, which was made use of by the complainant. Unless this barrier is crossed by the accused, the other defence raised by him whether the cheque was issued towards the hand loan or towards the amount spent by the complainant need not be considered.... "
16. It is further observed in para 18 of the decision that, Ordinarily in cheque bouncing cases, what the courts have to consider is whether the ingredients of the offence enumerated in Section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumptions contemplated by Section 139 of the Act. " Chapter XVII containing Sections 138 to 142 was introduced in the Act by Act 66 of 1988 with the object of inculcating faith in the efficacy of banking operations and giving credibility to negotiable instruments in business transactions. These provisions were intended to discourage people from not honouring their commitments by way of payment through cheques. In view of Section 139, it has to be presumed that a cheque is issued in discharge of any debt or other liability. The presumption can be rebutted by adducing evidence and the burden of proof is on the 16 Judgment C.C.13637-2019 person who wants to rebut the presumption. A contrary view would render Section 138 of NI Act a dead letter and will provide a handle to persons trying to avoid payment under legal obligations undertaken by them through their own acts which in other words can be said to be taking advantage of one's own wrong..." The Hon'ble Apex court clearly laid down the ratio that, when the ingredients of section 138 of NI Act are complied with, presumption shall be drawn in favour of the complainant. The burden is upon the accused to rebut the statutory presumptions.
17. To discharge her burden, the accused has led defence evidence by examining herself as DW1 and also cross-examined PW1. In support of her oral testimony she has produced Ex.D1 to 6. Ex.D1 to 4 are the documents relating to children of the accused that they were getting scholarship from the Government for their education. Ex.D5 is the appointment letter of daughter of accused by name Soumya and Ex.D6 is the complaint given by the accused to her banker informing that she has lost her cheque book. In the chief examination the accused has reiterated her defence. During the cross-examination she has admitted that Cheque in question belongs 17 Judgment C.C.13637-2019 to her and it contained her signature. She also admitted that she is residing in the address mentioned in the Ex.P3 notice. However she denied that she has received notice. She further admitted that after dishonour of Ex.P1 cheque she has given Ex.D6 to the bank. She denied the suggestion that she has borrowed loan of Rs.15 lakhs from the complainant and for repayment of the said debt she has issued Ex.P1 cheque to the complainant. She also denied that intentionally she wrote cheque in different handwriting.
18. The first contention of the accused that no notice as contemplated under section 138 of NI Act has been served on her. As such section 138 of NI Act has not been complied by the complainant. Hence on the same ground the complaint is liable to be dismissed. In support of her contention the accused has not produced any document to show her correct address. During the cross- examination the accused specifically admitted that she is residing in the address mentioned in the Ex.P3 notice. Ex.P4 postal receipt and postal tracking shows that the complainant has sent notice on the correct address of the accused. Hence the burden of the accused to show that no notice was served on her. The accused has not 18 Judgment C.C.13637-2019 produced any document regarding her correct address nor examined the post master to prove that notice sent by the complainant was not served on her. Thereby the complainant has complied the mandatory requirement of section 138 of NI Act.
19. The next contention of the accused is that she never borrowed loan of Rs.15 lakhs from the complainant as alleged in the complaint and she had no necessity to borrow said huge amount at the relevant point of time. It is the specific case of the complainant that in the 1 st week of January 2018, the accused has approached the complainant for hand loan of Rs.7,00,000/- for purpose of her children education. Considering her request, the complainant has paid Rs.7,00,000/- by way of cash on 07-01-2018. Again the accused approached the complainant in the 2nd week of October 2018 and requested for hand loan of Rs.8,00,000/- for purpose of purchase of site and complainant has paid Rs.8 lakhs to the accused on 18-10-2018 and at the time of receiving the amount the accused has promised to return the same on or before 31-1-2019, but she has not to kept up her promises. On repeated demand and request accused has issued the cheque in question for discahrge of said debt. To prove alleged debt except the self serving statement of complainant no 19 Judgment C.C.13637-2019 documentary evidence is produced. The loan amount is very substantial and it is highly improbable that a person would lend such huge amount to the other person without executing any document to that effect or without taking adequate security from the other person. In the absence of any document supporting the allegations of the complainant that the alleged loan amount was advanced to the accused, it cannot be believed that she might have advanced said amount to the accused.
20. In the complaint and legal notice the complainant contended that the accused availed loan for educational expense of her children and to purchase site. But during the cross-examination she goes on deposing that the accused borrowed loan for her husband centering work and for repayment of housing loan. The said purpose for borrowing loan has not been stated in the complaint. The learned counsel for the accused contended that children of the accused were getting scholarship from the government during the relevant point time, hence they have not required any amount for their education. In support of the said contention the accused has produced Ex.D1 to 4 documents. On perusal of the same, it is clearly appears that the children of the accused were getting scholarship in the year 2015 to 20 Judgment C.C.13637-2019 2018 for their education. Further Ex.D5 establish that the daughter of the accused by name Sowmya was got appointed in Concentrix company on 08-05-2018. These documents clearly establishes that there was no necessity for the accused to borrow such huge amount at the relevant point for educational expense of her children.
21. PW1 during her cross-examination deposed that while borrowing loan the accused was executed on demand promissory note. But she has not produced the same before the court for the reason best know to her. Further in the complainant the complainant contended that after demand for repayment of loan amount the accused has issued cheque in question. But in the cross-examination she deposed that the accused has issued cheque in question at the time of borrowing loan of Rs.8 lakhs, which is totally contrary to the case of the complainant stated in the complaint. Therefore having regard to facts an circumstances of the case and evidences available on record, the oral testimony of complainant is not suffice to establish the existence of debt. Merely producing the cheque does not create any liability against the accused. Under such circumstances very case of the complainant that accused has given 21 Judgment C.C.13637-2019 cheque in discharge of liability appears to be vague and unbelievable.
22. The accused has seriously disputed the financial capacity of the complainant to lend loan of Rs.15,00,000/- at the relevant point of time. Regarding financial capacity of the complainant is concerned, it is appropriate to refer judgment reported in In Rohitbhai Jivanlal Patel v. State of Gujarat : AIR 2019 SC 1876, Wherein the Hon'ble Supreme Court has observed that "The observations of the trial court that there was no documentary evidence to show the source of funds with the respondent to advance the loan, or that the respondent did not record the transaction in the form of receipt of even kachcha notes, or that there were inconsistencies in the statement of the complainant and his witness, or that the witness of the complaint was more in know of facts etc. would have been relevant if the matter was to be examined with reference to the onus on the complaint to prove his case beyond reasonable doubt. These considerations and observations do not stand in conformity with the presumption existing in favour of the complainant by virtue of Section 118 and section 139 of the NI Act. Needless to reiterate that the result of such presumption is that 22 Judgment C.C.13637-2019 existence of a legally enforceable debt is to be presumed in favour of the complainant. When such a presumption is drawn, the factors relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the accused has been able to rebut the presumption or not". In Basalingappa v. Mudibasappa : AIR 2019 SC 1983, the Hon'ble Apex Court observed that "During his cross-examination, when financial capacity to pay Rs.6 lakhs to the accused was questioned, there was no satisfactory reply given by the complainant. The evidence on record, thus, is a probable defence on behalf of the accused, which shifted the burden on the complainant to prove his financial capacity and other facts". In APS Forex Service Private Limited v. Shakti International Fashion Linkers AIR 2020 SC 945, the Hon'ble Apex Court has clarified and explained the issue as follows "Now so far as the reliance is placed by Learned Counsel appearing on behalf of the accused on the decision of this Court in the case of Basalingappa (supra), on going through the said decision, we are of the opinion that the said decision shall not be applicable to the facts of the case on hand and/or the same shall not be of any assistance to 23 Judgment C.C.13637-2019 the accused. In that case before this Court, the defence by the accused was that the cheque amount was given by the complainant to the accused by way of loan. When the proceedings were initiated under Section 138 of the N.I. Act the accused denied the debt liability and the accused raised the defence and questioned the financial capacity of the complainant. To that, the complainant failed to prove and establish his financial capacity. Therefore, this Court was satisfied that the accused had a probable defence and consequently in absence of complainant having failed to prove his financial capacity, this Court acquitted the accused. In the present case, the accused never questioned the financial capacity of the complainant. We are of the view that whenever the accused has questioned the financial capacity of the complainant in support of his probable defence, despite the presumption under section 139 of the N.I. Act about the presumption of legally enforceable debt and such presumption is rebuttable, thereafter the onus shifts again on the complainant to prove his financial capacity and at that stage the complainant is required to lead the evidence to prove his financial capacity, more particularly when it is a case of giving loan by cash and thereafter issuance of a cheque".
24 Judgment C.C.13637-2019
23. The crux of the decisions referred to above is that the complainant has no obligation, in all cases under section 139 of the N.I. Act, to prove his financial capacity. But, when the case of the complainant is that he lent money to the accused by cash and that the accused issued the cheque in discharge of the liability, and if the accused challenges the financial capacity of the complainant to advance the money, despite the presumption under section 139 of the N.I. Act, the complainant has the obligation to prove his financial capacity or the source of the money allegedly lent by him to the accused. The complainant has no initial burden to prove his financial capacity or the source of the money. The obligation in that regard would arise only when his capacity or capability to advance the money is challenged by the accused. In the present case, the accused had challenged the financial capacity of the complainant to lend loan of Rs.15,00,000/- .
24. During the cross-examination, the complainant has stated that she is a house wife and she owned 6 houses and getting income from rental and lease of those houses. She also deposed that she leased out two house and received lease amount. Out of the said amount 25 Judgment C.C.13637-2019 she lent Rs.15 lakhs to the accused. But no piece of document is produced to show that she had six houses and she received lease amount during the relevant point of time. The complainant has not made any efforts to prove her financial capacity to lend such huge amount of Rs.15,00,000/-. The oral testimony of complainant regarding her financial capacity alone is not sufficient to presume that she had financially capable to advance such huge amount. Hence this court of the view that the complainant has failed to prove her financial capacity to lend loan of Rs.15 lakhs at the relevant point of time.
25. Hon'ble Apex court in the case of Kumar Exports Vs Sharma Carpets, reported in (2009)2 SCC 513 has held that the accused in a trail under section 138 of N I Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstance of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumption an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove 26 Judgment C.C.13637-2019 that the cheque in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, bare denial of passing of the consideration and existence of debt, apparently does not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the cheque in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. In the case on hand, the facts and circumstance 27 Judgment C.C.13637-2019 discussed above leads to the conclusion that the defence set up by the accused that cheque in question is not issued for any debt or liability is so probable one. Therefore, the accused by raising probable defence has rebutted the statutory presumptions enshrined under section 118 and 139 of NI Act.
26. Hon'ble Apex court in the case of Kamala S Vs Vidhyadharan M J, reported in (2007) 5 SCC 264 has held that once the accused has discharged his burden, then onus shifts on the complainant to prove his case beyond reasonable doubt. In the present case, though the complainant contended that the accused has borrowed loan of Rs.15,00,000/- from her, except the cheque in question no other documentary evidence is produced to prove that accused has borrowed loan on the alleged date. No contemporary documents have come into existence. When the substantial amount of Rs.15,00,000/- was let, it is reasonable to expect that creditor would insist on the debtor to execute some document evidencing such transaction. Absence of any such documentary evidence would create grate amount of doubt about the genuineness of the transaction alleged by the complainant as held by the Hon'ble High 28 Judgment C.C.13637-2019 court of Karnataka in the case of B. Girish Vs. S. Ramaiah reported in 2010(2) K.L.J. 284.
27. On overall appreciation of evidence, it is forthcoming that the complainant has failed to prove his case beyond reasonable doubt. In other words, the complainant has failed to put forth acceptable and satisfactory evidence in support of the case, to show that the accused has issued cheque Ex.P-1 for legally recoverable debt or liability. In the result, I am of the considered opinion that the complainant has failed to prove that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. In view above discussion this court proceeds to answer POINT NO.1 IN THE NEGATIVE.
28. POINT NO.2:- In view of above said reasons the allegation levelled against the accused is not proved beyond reasonable doubts. Accordingly, this court proceeds to pass following;
ORDER Acting under Section 255(1) of Cr.P.C., accused is acquitted of the offence punishable under Section 138 of Negotiable Instruments Act.
29 Judgment C.C.13637-2019 Bail bond and surety bond stand cancelled.
(Directly dictated to the Stenographer on computer, typed by her, corrected by me and then judgment pronounced in the open court on this the 8 th day of March 2022).
(MANJUNATHA M.S.) XVIII A.C.M.M.,BANGALORE ANNEXURE I. List of witnesses on behalf of complainant:
P.W.1: Smt.Geetha.G II. List of documents on behalf of complainant:
Ex.P-1 : Original Cheque.
Ex.P-2 : Bank memo.
Ex.P-3 : Legal notice.
Ex.P-4 : Postal receipt.
Ex.P-5 : Complaint given to Post Master.
Ex.P-6 : Postal consignment details.
III. List of witnesses for the accused:
D.W.1: Smt.Manjula
IV. List of documents for accused:
Ex.D-1 to 4 : Copy of Student verification and
Acknowledgment regarding scholarship.
Ex.D.5 : Appointment letter.
Ex.D.6 : Intimation letter to bank.
(MANJUNATHA M.S.)
XVIII A.C.M.M.,BANGALORE
30 Judgment C.C.13637-2019