Bangalore District Court
Sri H.B. Shankar vs Kumari Varsha K.Y on 2 May, 2016
IN THE COURT OF THE XIX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY
Dated this the 2nd day of May, 2016
PRESENT: SMT. ISHRATH JAHAN ARA, B.A.L., L.L.B.,
XIX ADDL.C.M.M.BANGALORE.
Case No: CC No. 26114/2014
Complainant: Sri H.B. Shankar
S/o. Byrappa,
Aged about 54 years,
No.86, 20th Main,
J.C. Nagar,
Kurubarahalli,
Bangalore -560 086.
Accused: Kumari Varsha K.Y.
Aged about 25 years,
R/at No.78/1,
11th Main Road,
T. Rama Rao Layout,
Malleshwaram,
Bangalore -560 003.
Offence complained of: U/s.138 of N.I. Act
Plea of accused: Pleaded not guilty
Opinion of the Judge Accused found not guilty
Date of order: 2nd May 2016
JUDGMENT
The complainant has filed this complaint U/s.200 of Cr.P.C. against the accused for the offence punishable U/s. 138 of N.I. Act.
2. The brief facts of the complaint that, the Complainant and the accused are friends and well acquainted to each other from past several 2 C.C.No.26114/2014 years and she was introduced this Complainant by one Sri. Mahesh of Shivanahalli, Bangalore and she used to visit this Complainant for several times in connection with her business. The accused approached this Complainant for the financial assistance of Rs.10,00,000/- to improve her business as she has sustained loss in her business with a promise to repay the loan amount within a span of 3 months. By believing the words of the accused, the Complainant had advanced a hand loan of Rs.8,00,000/- on 20.1.2014 out of the amount saved by him for the marriage expenses of his son and also by securing some money. After receipt of the loan amount, the accused promised to issue cheque for repayment of the loan amount and also promised to furnish two sureties and guarantee for the loan amount and she also pledged her vehicle valuing more than Rs.25,00,000/-. The accused towards the repayment of the loan amount, had issued her cheque bearing No.140638 dtd.30.5.2014 for Rs.8,00,000/- drawn at HDFC Bank, Marathahalli branch, Bangalore with a request to present the said cheque for encashment and it will be honoured on its presentation.
3. It is further submitted by the Complainant that as per the assurance of the accused, he presented the said cheque before his banker for encashment but the said cheque returned dishonoured with an endorsement "funds insufficient" on 5.6.2014 and the same was 3 C.C.No.26114/2014 informed to this Complainant on 7.6.2014 by his banker and subsequently he informed the dishonour of the cheque to the accused.. As the Accused has failed to make payment of the cheque amount, the Complainant got issued the Legal Notice through his advocate on 16.6.2014 by RPAD, calling upon the Accused to make payment of the cheques' amount within 15 days from the date of receipt of notice and the said notice was duly served upon this Accused on 18.6.2014. The accused even after receipt of Legal Notice, failed to make payment of the cheque amount. The Accused knowing fully well that she has no sufficient funds in her bank account, had issued the bogus cheque only with an intention to cheat this Complainant and thereby the accused committed an offence punishable u/Sec.138 of N.I. Act.
4. After recording of sworn statement of the complainant the Private Complaint lodged by the complainant was registered as a Criminal Case, summons was issued as against the accused. The accused appeared through her Counsel and she was enlarged on bail. Plea of accusation was read over to the accused. The accused pleaded not guilty and claims to be tried.
5. The complainant himself got examined as PW1 and he got produced 8 documents marked as Ex.P1 to Ex.P8 and closed his side of evidence.
4 C.C.No.26114/2014
6. After closure of complainant side evidence, accused statement u/s.313 Cr.P.C. recorded and read over to the accused. The accused denied the entire incriminating evidence and she intended to lead her evidence. The accused got herself examined as D.W.1 and she got produced 7 documents marked as Ex.D1 to Ex.D7 and closed her side of evidence.
7. I have heard the arguments from both sides and perused the entire records.
8. The only point arise for my consideration is:
1. Whether the Complainant has proved the guilt of the accused u/s 138 of NI Act beyond all reasonable doubts?
2. What order?
9. My findings to the above point are as under:
Point No.1 : In the Negative
Point No.2 : As per final order
for the following:
REASONS:
10. Point No.1: The entire burden is on the complainant to prove his case and also to prove the above point. In order to prove the same, the complainant stepped into the witness box, got examined as PW-1 and he filed his affidavit in lieu of the oral evidence by reiterating the complaint averments.
5 C.C.No.26114/2014
11. PW1 deposed that the accused is his friend and well acquainted to him from past several years and she was introduced to him by one Sri. Mahesh of Shivanahalli, Bangalore and she used to visit him for several times in connection with her business. He deposed that the accused approached him for the financial assistance of Rs.10,00,000/- to improve her business as she has sustained loss in her business with a promise to repay the loan amount within a span of 3 months. He deposed that, he had advanced a hand loan of Rs.8,00,000/- on 20.1.2014 out of the amount saved by him for the marriage expenses of his son and also by securing some money and after receipt of the loan amount, the accused promised to issue cheque for repayment of the loan amount and also promised to furnish two sureties and guarantee for the loan amount and she also pledged her vehicle valuing more than Rs.25,00,000/-. He deposed that the accused towards the repayment of the loan amount had issued her cheque bearing No. 140638 dtd.30.5.2014 for Rs.8,00,000/- drawn at HDFC Bank, Marathahalli branch, Bangalore with a request to present the said cheque for encashment and it will be honoured on its presentation.
12. He further deposed that as per the assurance of the accused, he presented all the said cheque before his banker for encashment but the said cheque returned dishonoured with an endorsement "funds insufficient" on 5.6.2014 and the same was informed to this 6 C.C.No.26114/2014 Complainant on 7.6.2014 by his banker and subsequently he informed the dishonour of the cheque to the accused. He deposed that as the Accused has failed to make payment of the cheque amount, he got issued the Legal Notice through his advocate on 16.6.2014 by RPAD, calling upon the Accused to make payment of the cheque amount within 15 days from the date of receipt of notice and the said notice was duly served upon this Accused on 18.6.2014. He deposed that the accused even after receipt of Legal Notice, failed to make payment of the cheque amount. He deposed that the Accused knowing fully well that she has no sufficient funds in her bank account, had issued the bogus cheque only with an intention to cheat him and thereby the accused committed an offence.
13. PW1 in order to prove his case, got produced the original cheque issued by this accused marked as Ex.P1. He deposed that the signature found on Ex.P1 is that of this accused and he got identified the signature found on the cheque marked as Ex.P1(a). He got produced the bank endorsement marked as Ex.P.2. He got produced copy of the legal notice along with RPAD receipt marked as Ex.P3 and Ex.P.4 respectively. He got produced the Postal Acknowledgement Due Card for having duly served the notice to this accused marked as Ex.P.5. He got identified the complaint marked as Ex.P.6. He got produced the Registration Certificate Card of this accused with respect 7 C.C.No.26114/2014 to her Car bearing Registration No.KA03 MR 6867 along with Form No.29 marked as Ex.P.7 and Ex.P8 respectively.
14. The Accused has denied the entire case of the Complainant and also denied the very fact that she borrowed hand loan of Rs.8,00,000/- from this Complainant and towards discharge of the said loan amount, she had issued her Ex.P1 cheque and the same was bounced. The Learned Counsel for the Accused subjected PW1 for cross-examination and he extensively cross-examined the PW1.
15. PW1 in his cross-examination stated that this accused is acquainted to him through his friend Sri. Mahesh but he is not aware what exactly the accused is doing as her occupation. He has stated that he is not aware of one Smt. Shailaja and even he is not aware that the Smt. Shailaja is the wife of Sri Mahesh. He denied the suggestion that for the first time, he has seen this accused before this court in this case. PW1 stated that for the security of the loan amount of Rs.8,00,000/- the accused had given her original Car documents. He further stated that he advanced a sum of Rs.8,00,000/- to this accused out of the sale consideration amount received by him after he sold out his land. PW1 stated that he has no documents with him to prove that he had with him a sum of Rs.8,00,000/- to advance the same in favour of this accused and he advanced the said amount to this accused as a loan. 8 C.C.No.26114/2014 PW1 further denied the suggestion that he had no financial capacity to advance the huge loan amount of Rs.8,00,000/- to this accused. However, PW1 has stated that he is an Income Tax Assessee and he is earning more than taxable income and therefore, every year he is submitting his income tax returns before the Income Tax Authority but he has not disclosed the loan transaction in his income tax returns.
16. PW1 in his cross-examination except stating that he is an Income Tax Assessee and he is earning more than taxable income and therefore, every year he is submitting his income tax returns to the Income Tax Authority, has not chosen to produce any piece of evidence before this court to prove his contention. PW1 denied the suggestion that there was no any loan transaction in-between him with this accused and even he has not advanced a sum of Rs.8,00,000/- to this accused on her request.
17. He further denied the suggestion that this accused had issued her 10 duly signed blank cheques belonged to HDFC Bank in favour of one Sri. Mahesh and Smt. Shailaja for the security of the loan amount of Rs.50,000/-. PW1 has stated that he is not aware whether this accused had lodged a police complaint against the said Sri Mahesh and Smt. Shailaja for misuse of her duly signed blank cheques before Malleswaram Police Station wherein the said Smt. Shailaja had given 9 C.C.No.26114/2014 her statement before the police that she has collected 10 duly signed blank cheques from this accused as a security to the loan amount of Rs.50,000/-. Likewise, he has stated that he cannot depose that out of the said 10 duly signed blank cheques the Ex.P1 cheque was also involved. PW1 denied the suggestion that out of the 10 duly signed blank cheques collected by the said Smt. Shailaja she had returned 7 cheques to this accused after retaining 3 duly signed blank cheques in her custody even though this accused had repaid the entire loan amount of Rs.50,000/- to the said Smt. Shailaja.
18. Likewise, PW1 denied the suggestion that he colluding with Sri. Mahesh and Smt. Shailaja, misused one of the duly signed blank cheque of this accused and created the same as Ex.P1 for Rs.8,00,000/- and filed this false complaint even though this accused was not liable to pay any amount in his favour. He denied the suggestion that he himself for his convenience, colluding with Sri.Mahesh and Smt. Shailaja written all the contents of the Ex.P1 cheque and presented the cheque for encashment even though this accused was not liable to pay any amount in his favour under Ex.P1 cheque. The PW1 except adducing the oral evidence that he is an Income Tax Assessee and every year he is submitting his income tax returns to the Income Tax Authority, has not chosen to prove the same by adducing documentary evidence before this court.
10 C.C.No.26114/2014
19. Even according to PW1, he advanced the loan amount of Rs.8,00,000/- to this accused out of the sale consideration amount received by him after he sold out his land without claiming interest from the accused on the loan amount.
20. Admittedly, the Complainant in this proceedings neither demanded interest on the loan amount nor he has deposed before this court that he demanded this accused to pay interest on the loan amount. Likewise, the PW1 has not obtained any documents from this accused after he advanced the loan amount by acknowledging the debt by this accused. These facts create a very serous doubt in the mind of court about the conduct and capacity of the PW1 to advance the huge loan amount of Rs.8,00,000/- to this accused. Moreover PW1 stated that he has no documents with him to prove that he advanced the loan amount of Rs.8,00,000/- and the same was acknowledged by this accused. Likewise, the PW1 has stated that he has no documents with him to prove that he had with him a sum of Rs.8,00,000/- to advance the same in favour of this accused and he advanced the said amount to this accused.
21. As I have discussed supra, PW1 except adducing the oral evidence that he is an Income Tax Assessee and he is earning more than 11 C.C.No.26114/2014 taxable income, has utterly failed to prove this fact by adducing documentary evidence before this court.
22. The Accused has taken up the specific defence that she had borrowed a hand loan of Rs.50,000/- from one Smt. Shailaja and Sri Mahesh and towards the security of the said loan amount, she had given her 10 duly signed blank cheques along with her Car documents for the security of the loan amount and even though she paid the entire loan amount to the said Smt. Shailaja and Sri Mahesh they have returned her 7 cheques by retaining her 3 duly signed blank cheques with them and with respect to the same she had lodged a police complaint before Malleshwaram police station wherein the said Smt. Shailaja had given her statement before the police by admitting that she has retained 3 duly signed blank cheques of this accused with her along with her Car documents and she will return the said documents in due course.
23. Though the said defence was put to PW1 during his cross- examination but he has denied the entire suggestions put to him. Likewise, he denied the suggestion that he by misusing the duly signed blank cheque of this accused, colluding with the said Smt. Shailaja and Sri. Mahesh, misused the cheque and created the said cheque for a total sum of Rs.8,00,000/- and filed this false complaint even though the 12 C.C.No.26114/2014 accused is not liable to pay cheque amount disclosed in Ex.P1. Though PW1 in his cross-examination denied the entire suggestions put to him and denied that the accused is not liable to pay the cheque amount as she has not issued the Ex.P1 cheques towards repayment of the loan amount.
24. Even though the accused has denied the issuance of Ex.P1 cheque in favour of PW1 towards repayment of the loan amount however, she has categorically admitted the fact that the Ex.P1 cheque is belonged to her bank account number and even admitted her signatures found on Ex.P1 marked as Ex.P.1(a). The accused has taken up the specific defence that she has given her duly signed Ex.P1 blank cheque in favour of one Smt. Shailaja and Sri. Mahesh as a security towards the loan amount of Rs.50,000/- along with her other two duly signed blank cheques and this Complainant colluding with said Smt. Shailaja and Sri. Mahesh, misused her cheque and created the same as Ex.P1 and filed this false complaint.
25. As I have discussed supra, the accused has denied the very existence of loan as on date of Ex.P1 cheque. In such situation, the burden is heavily on this Complainant to prove the loan transaction and to prove that as on date of Ex.P1 cheque, there existing a legally dischargeable debt or other liability on this accused and this accused by 13 C.C.No.26114/2014 admitting her liability and to repay the loan amount, had issued her Ex.P1 cheque. The Complainant in order to prove this fact except adducing the oral evidence, which has been categorically denied by this accused, nothing has been placed before this court to believe his testimony that as on date of Ex.P1 cheque there exiting a legally dischargeable debt or other liability on this accused.
26. Likewise, the PW1 except adducing the oral evidence that he had with him a huge amount of Rs.8,00,000/-and he advanced the said amount to this Accused on her request as a loan, has not chosen to prove the same by adducing the documentary evidence before this court.
27. Admittedly, the burden is on the PW1 to prove that he had the financial capacity to advance the huge amount of Rs.8,00,000/- and he advanced the loan amount of Rs.8,00,000/- to the accused on her request. In order to prove this fact, there is no evidence from the side of this Complainant. In such situation, without any evidence before this court, it is not possible to believe the testimony of PW1 that as on date of Ex.P.1 cheque, there existing a legally recoverable debt on this Accused and she by admitting her liability in order to discharge her liability, had issued Ex.P.1 cheque and the same was bounced. 14 C.C.No.26114/2014
28. As I have discussed supra, the PW1 except adducing the oral evidence that he had advanced a huge loan amount of Rs.8,00,000/- to this Accused on her request, which has been categorically denied by this Accused, nothing has been placed before this court to believe his testimony and to prove the loan transaction and also to prove that as on date of Ex.P.1 cheque there existing a legally enforceable debt or other liability on this Accused.
29. These facts create a very serious doubt in the mind of the court about the conduct and capacity of this Complainant to advance the huge loan amount of Rs.8,00,000/- in favour of this Accused and also issuance of Ex.P.1 cheque towards the repayment of the loan amount.
30. Admittedly, the Complainant except adducing the oral evidence, which has been categorically denied by this Accused, has utterly failed to clear all the doubts aroused in the mind of court by adducing cogent and convincing evidence before this court.
31. However, the Accused in order to prove her defence and also to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act, got examined as DW1. She has categorically deposed that at no point of time she had borrowed any amount from this Complainant nor she had issued any cheque in favour of this Complainant towards 15 C.C.No.26114/2014 the repayment of the loan amount. She deposed that since from May 2013 she is working as a Finance Analyst at Wells Fargo India Solutions Pvt. Ltd. Company and except the said work she has no any other avocation either by way of business or other work.
32. She further deposed that her father was working as a Chartered Accountant. She further deposed that neither she nor any of her family members had made any transaction with this Complainant and even this Complainant is a utter stranger to her and her family. She deposed that for the first time she has seen this Complainant before this court in this proceedings. She has not borrowed a sum of Rs.8,00,000/- from this Complainant and even she has not issued Ex.P1 cheque towards repayment of the loan amount in favour of this Complainant. She deposed that she has not written the contents of on the cheque.
33. She has categorically deposed that she has issued her Ex.P1 duly signed blank cheque in favour of one Smt. Shailaja and Sri Mahesh as a security towards the loan amount of Rs.50,000/- . She deposed that she had borrowed a sum of Rs.50,000/- from Smt. Shailaja and Sri. Mahesh and towards the security of the said amount she had given her 10 duly signed HDFC Bank cheques for the monthly installment amount and immediately after she paid the monthly 16 C.C.No.26114/2014 installment amount, the Smt. Shailaja and Sri. Mahesh were returning her cheques and likewise, they returned 7 cheques after receipt of the installment amount. She deposed that even though she paid remaining 3 monthly installments amount to Smt. Shailaja and Sri. Mahesh they failed to return her duly signed blank cheques. She deposed that Ex.P1 cheque is one of the blank cheque issued by her in favour of Smt. Shailaja and Sri. Mahesh towards the security of the loan amount of Rs.50,000/-.
34. She has deposed that as the Smt. Shailaja and Sri. Mahesh have failed to return her duly signed blank cheque even though they received the entire loan amount, she had filed a police complaint before Malleshwaram Police Station through her father and the said complaint was registered by the police and subsequently, the police summoned the Smt. Shailaja and recorded her statement. She got produced the document for having lodged the First Information before the Malleswaram Police Station along with the endorsement issued by the S.H.O. of Malleshwaram Police Station on 3.5.2014 marked as Ex.D1 and Ex.D2 respectively. She deposed that in the said proceedings, the police have recorded the statement of the Smt. Shailaja and she got produced the Certified Copy of the statement recorded by the Police u/Sec.161 of Cr.P.C. marked as Ex.D3. She got produced her Appointment Letter along with Offer Letter issued by Wells Fargo 17 C.C.No.26114/2014 India Solutions Pvt. Ltd. Company marked as Ex.D4 and Ex.D5 respectively. She deposed that immediately after receipt of the notice from the Complainant she has sent her reply notice through RPAD and she got produced the Reply Notice along with Postal Acknowledgement Due Card for having served the Reply notice to the Complainant marked as Ex.D6 and Ex.D7 respectively. She deposed that the Smt. Shailaja has failed to return her duly signed blank cheques as per the undertaking given by her before the police and she colluding with this Complainant, misused her cheque and created the same for Rs.8,00,000/- and filed this false complaint even though she is not liable to pay any amount to this Complainant. DW1 prays to dismiss the complaint.
35. No doubt, the learned Counsel for the Complainant subjected DW1 for cross-examination by denying her testimony, however DW1 in her cross-examination denied the entire suggestions put to her and denied that she after receipt of the loan amount of Rs.8,00,000/- from this Complainant in order to repay the loan amount by admitting her liability, had issued Ex.P1 cheque for total amount of Rs.8,00,000/- in favour of PW1. No doubt DW1 in her cross-examination admitted that she had given her Car Registration Certificate along with duly signed Form No.29 in favour of this Complainant with respect to her Car and even she admitted the documents confronted to her marked as Ex.P7 18 C.C.No.26114/2014 and Ex.P8 and stated that these two documents are related to her car. However, she has categorically denied the suggestion that she has pledged her car in favour of o this Complainant towards the loan amount of Rs.8,00,000/- and also given her Ex.P7 and Ex.P8 documents in favour of this Complainant.
36. The Complainant except putting some suggestion to DW1 that she had issued her Ex.P1 cheque in favour of this Complainant towards the repayment of the loan amount of Rs.8,00,000/- which has been categorically denied by DW1 nothing has been elicited from her mouth to disbelieve her testimony and to discard her documentary evidence marked as Ex.D.1 to Eex.D6. Ex.D1 to Ex.D3 documents clearly proves that the DW1 through her father had lodged a First Information against Smt. Shailaja and Sri Mahesh by making allegation against them that she had given her duly signed 10 HDFC bank blank cheques along with her Honda Brio Car documents towards the security of the loan amount of Rs.50,000/- and even though the accused has repaid the entire loan amount to the said Smt. Shailaja and Sri Mahesh they have retained the 3 duly signed blank cheques along with her Car documents and they are making further demand of Rs.60,000/-.
37. In Ex.D2 document the DW1 has clearly disclosed the cheques number relating to her 3 HDFC Bank blank cheques 19 C.C.No.26114/2014 No.140638, 140639, and 140640 by stating that these cheques are still in the custody of Smt. Shailaja and Mahesh. Likewise, the Ex.D3 document clearly discloses that the Smt. Shailaja herself given her statement u/Sec.161 of Cr.P.C. before the Station House Officer by stating that she is in possession of 3 HDFC Bank cheques bearing No.140638 , 140639 and 140640 belonged to this accused along with her Car documents relating to Honda Brio Car bearing No.KA 03 MR 6867 and she has taken these documents as a security to the loan amount of Rs.50,000/-. The Ex.D3 document further discloses that she has collected 10 duly signed blank cheques belonged to this accused from her HDFC Bank for the security of the loan amount of Rs.50,000/- out of which she has already returned 7 cheques to this accused by retaining 3 cheques out of which Ex.P1 cheque produced before this court was also in her possession.
38. These documents have not been denied by the Complainant. No suggestion was put to DW1 by denying the Ex.D1 to Ex.D3 documents and also by denying the contents of these documents. These documents clearly proves that much before the date of issuance of cheque by the accused to the Complainant as deposed by PW1 in his evidence i.e., on 30.5.2014 the accused has already initiated legal action against Smt. Shailaja and Sri Mahesh on 3.5.2014 itself and with respect to the same Smt. Shailaja had already given her statement u/Sec.161 of 20 C.C.No.26114/2014 Cr.P.C. before the police by admitting that she is in possession of the blank cheque bearing cheque No.140638. In such situation, the testimony of PW1 that the accused in order to repay the hand loan of Rs.8,00,000/- had issued her Ex.P1 cheque in his favour on 30.5.2014 for a sum of Rs.8,00,000/- cannot be acceptable and believable. Moreover, the Complainant after this accused led her evidence before this court by producing Ex.D1 to Ex.D3 documents, has failed to lead his rebuttal evidence before this court even though the burden shift on this Complainant to prove the existence of debt or other liability as on date of Ex.P1 cheque on this accused. The Ex.D1 to Ex.D3 documents falsify the case of the Complainant and also falsify the testimony of PW1.
39. As I have discussed supra, the Complainant during the cross- examination of DW1 except putting suggestions to her that she had issued Ex.P1 cheque towards repayment of the loan amount after receipt of the loan amount of Rs.8,00,000/-, which has been categorically denied by DW1, nothing has been elicited from her mouth to disbelieve her testimony and or to discard her evidence. As I have discussed supra, the initial burden is always on this Complainant to prove the existence of debt or liability as on date of Ex.P1 cheque on this accused and to prove that the accused by admitting her liability in order to discharge her liability, had issued her Ex.P1 cheque. 21 C.C.No.26114/2014
40. As I have discussed supra, the Complainant in order to prove this fact, except adducing the oral evidence that he advanced the huge loan amount of Rs.8,00,000/- to this accused and this accused towards repayment of the loan amount, had issued Ex.P1 cheque, has not chosen to prove the same to the satisfaction of the court.
41. As I have discussed supra, the accused by leading her oral and documentary evidence before this court, has successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act and successfully proved that the Complainant based on the created document, approached this court and filed this complaint.
42. The Complainant except adducing the oral evidence that he had advanced a huge loan amount of Rs.8,00,000/- to this Accused, has not chosen to prove the same to the satisfaction of the court. It is well settled principle of law that the presumption u/Sec.139 of N.I. Act is available to this Complainant only with respect to issuance of cheque for repayment of debt or other liability by this Accused. However, the burden is on this Complainant to prove the existence of debt or other liability as on date of Ex.P.1 cheque to the satisfaction of the court and to prove that he had financial capacity to advance the huge amount of Rs.8,00,000/- to this Accused.
22 C.C.No.26114/2014
43. Here in this case, the Complainant except adducing the oral evidence that he had advanced the huge loan amount of Rs.8,00,000/- in favour of this Accused and towards repayment of the said loan amount, the Accused had issued Ex.P.1 cheque, has miserably failed to prove his case to the satisfaction of the court. The Complainant has utterly failed to prove the existence of legally recoverable debt or other liability on this Accused as on date of Ex.P.1 cheque and also to prove that the Ex.P.1 cheque issued towards the discharge of her liability to pay the loan amount.
44. The learned Counsel for the Complainant has vehemently argued that the Accused has totally failed to prove her defence to the satisfaction of the court that the accused had borrowed a hand loan of Rs.50,000/- from one Smt. Shailaja and Sri. Mahesh and towards the security of the loan amount she had given her 10 duly signed blank cheques along with her car documents and even after she repaid the entire loan amount the said Smt. Shailaja and Sri Mehesh failed to return her 3 duly signed blank cheques and the Smt. Shailaja colluding with this Complainant misused the cheque and created the same for Rs.8,00,000/- and filed this false complaint. He has argued that the entire burden is on this accused to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act and this accused has failed to rebut the presumption available to this Complainant. 23 C.C.No.26114/2014
45. He further argued that the accused only with an intention to ran away from her liability to pay the cheque amount, has taken up the false defence before this court during the stage of trial. He has argued that the accused even inspite of receipt of Legal Notice, issued as per Ex.P3 prior to filing of this complaint, has not chosen to make payment of the cheque amount.
46. He further argued that the Ex.P1 cheque is belonged to this accused and even the signature found on the said cheques is that of this accused and therefore, by drawing a presumption in favour of this Complainant u/Sec.139 of N.I. Act and also by holding that the accused has not successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act, the accused has to be convicted for the offence u/Sec.138 of N.I Act and she has to be sentenced for imprisonment and also to impose fine. The arguments canvassed by the learned Counsel for the Complainant, is not convinced this court and it holds no merit. The learned Counsel for the Complainant in support of his arguments has relied upon the judgment reported in 1999 Cri. L.J. 4606 between K. Bhaskaran Vs. Sankaram Vaidhyan Balan and another wherein it is held that;
"(D) N.I. Act (26 of 1881) Ss.138, 118, 139 - cheque dishonour
- accused denied having issued the cheque although he owned his signature therein - Presumption that cheque was made or drawn for consideration on date which cheque bears arises - Holder of cheque presumed to have received it 24 C.C.No.26114/2014 for discharge of loan amount - Burden is upon accused to rebut presumption."
Air 2007 (NOC) 470 (DEL) between Vipin Gupta Vs. Prem Singh wherein it is held that;
" Suit for recovery of loan - Plaintiff alleged that tow cheques issued by defendant towards loan amount were returned unpaid by bank with remark 'account closed' - plea by defendant that he had lost two cheques which were stolen by plaintiff and used by him for filing suit - Defendant had not denied his signature on documents relied on by plaintiff - he had also given undertaking to return sum and executed receipt duly signed by him -Plea raised by defendant was sham and had no force - Rejection of application for leave to defence is therefore, proper."
The law laid down in these judgment are not applicable to the facts of the present case on hand and it will nowhere helpful to the case of the Complainant.
47. As I have discussed supra, admittedly, the Complainant except adducing the oral evidence that he had the financial capacity to advance the huge loan amount of Rs.8,00,000/- to this Accused, has not chosen to prove the same by adducing the documentary evidence before this court. The burden is on this PW1 to prove his financial capacity to advance the huge loan amount of Rs.8,00,000/- to this Accused and to prove that as on date of Ex.P1 cheque there existing a legally recoverable debt or other liability on this accused and the accused by admitting her liability had issued her Ex.P1 cheque. As I 25 C.C.No.26114/2014 have discussed supra, the Complainant in order to prove this fact except adducing the oral evidence, has totally failed to prove his case by adducing documentary evidence before this court to the satisfaction of the court.
48. On the contrary, the learned Counsel for the Accused argued that there is no burden on this Accused to prove her defence beyond all reasonable doubts and this accused can very well discharge her burden by preponderance of probabilities and even by cross-examining PW1 and this Accused by cross-examining PW1 and also by leading her evidence before this court by producing and marking Ex.D1 to Ex.D.7 has successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act, is fully convinced this court. As I have discussed supra, the accused by producing and marking Ex.D1 to Ex.D3 documents clearly proved that she had given her duly signed Ex.P1 blank cheque along with other nine duly signed blank cheques in favour of one Smt. Shailaja and Sri. Mahesh along with her Car documents and even though she repaid the entire loan amount to the said Smt. Shailaja and Sri. Mahesh, they instead of returning her 3 duly signed blank cheques along with her Car documents, misused the same colluding with this Complainant and filed this complaint against the accused with an intention to make an unlawful gain for themselves and to cause monetary loss to this accused.
26 C.C.No.26114/2014
49. Likewise, his arguments that the entire burden is on this Complainant to prove his financial capacity to advance the huge loan amount of Rs.8,00,000/- and to prove that he had advanced the said amount to this accused and this Complainant has totally failed to prove this fact by adducing convincing evidence before this court, is also convinced this court. His arguments that the Complainant has totally failed to prove that the accused had issued her Ex.P1 cheque in order to repay the loan amount to this Complainant and as on date of Ex.P1 cheque there existing a legally dischargeable debt or other liability on this accused and she by admitting her liability, had issued her Ex.P1 cheque and the same was bounced.
50. Admittedly, there is no burden on this Accused to prove her defence beyond all reasonable doubts. The Accused can very well discharge her burden by preponderance of probabilities and she has successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act. The judgement relied by the learned Counsel for the accused in support of his arguments reported in 2008 AIR SCW 738 between Krishna Janardhan Bhat Vs. Datttraya G. Hegde wherein it is held that;
"Accused not required to step into witness-box to prove his defence. He may discharge his burden on the basis of materials already brought on record - Question whether statutory presumption rebutted or 27 C.C.No.26114/2014 not - Must be determined in view of other evidences on record."
(2006) 6 Supreme Court Cases 39 between M.S. Narayana Menon @ Mani Vs. State of Kerala and another wherein it is held that;
"The burden of proof on the accused is not heavy. The accused need not prove the prosecution case on its entirety. He can discharge its burden on the basis of preponderance of probabilities through direct or circumstantial evidence- For said purpose he can also rely upon the evidence adduced by the Complainant.
2014 (3) DCR 462 Karnataka High Court between K. Yashoda Vs. K. Venkatsh wherein it is held that;
"Since a reasonable doubt has been created by the accused with regard to filling up a cheque, trial court has not committed any error in passing order of acquittal."
In view of the law laid down by our Hon'ble High Court reported in 2010 Cri. L.J. 372 between Shrimathi Vs. Renuka, wherein it is held that;
"For raising said presumption Complainant has to establish fact that 'he received the cheque' in question from the accused and thereby he became its holder"
Wherein it is further held that;
"The presumption u/Sec.139 of N.I. Act of N.I. Act extends only to the issuance of cheque towards discharge of legally enforceable debt or liability and it has to be raised only after the Complainant establishes that such debt or liability in fact existed as on date of cheque in question and the cheque was given to him by accused."28 C.C.No.26114/2014
The judgment relied by the Learned Counsel for the accused is amply applicable to the defence taken by the accused.
51. The Complainant has to prove the existence of debt or other liability as on date of cheques to draw presumption in his favour u/Sec.139 of N.I. Act.
52. As I have discussed supra, the Complainant has utterly failed to prove his case and to prove that this Accused has committed an offence punishable u/Sec.138 of N.I. Act. The oral and documentary evidence adduced before this court by the Complainant is not sufficient and convincing to bring home the guilt of the Accused beyond all reasonable doubts. The entire burden is on this Complainant to bring home the guilt of the Accused beyond all reasonable doubts to the satisfaction of the court. Unless the Complainant is discharge his initial burden, no burden will shift on this Accused to rebut the presumption available to this Complainant u/Sec.139 of N.I Act.. The Complainant has utterly failed to prove that the Accused had committed an offence punishable u/Sec.138 of N.I. Act and therefore she is liable for punishment. In such situation, the benefit of doubt goes in favour of this Accused. Hence, by taking into consideration the facts and circumstances and evidence available on record, I answer Point No.1 in the Negative.
29 C.C.No.26114/2014
53. Point No.2: In view of my findings on the above point and the reasons stated therein, I proceed to pass the following:
ORDER Acting u/s.255 (1) of Cr.P.C. the accused is hereby acquitted for the offence punishable u/s.138 of N.I. Act.
The bail bond and surety bonds of the accused stands cancelled.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified and then pronounced by me in the Open Court on this the 2nd day of May, 2016)-
(ISHRATH JAHAN ARA) XIX ADDL.CMM Bangalore ANNEXURE:
Witnesses examined on behalf of the Complainant: PW.1 Mr. H.B. Shankar Witneses examined on behalf of the Accused: D.W.1 Ms. Varsha Documents marked on behalf of the Complainant:
Ex.P.1 Cheque
Ex.P.1(a) Signature of the Accused
Ex.P.2 Bank endorsement
Ex.P.3 Copy of Legal Notice
Ex.P.4 RPAD receipt
Ex.P.5 Postal Acknowledgement Due Card
Ex.P.6 Complaint
Ex.P.7 Certificate of Registration Card
Ex.P.8 Form No.29
Documents marked on behalf of the Accused:
Ex.D1 First Information
30 C.C.No.26114/2014
Ex.D2 Endorsement
Ex.D3 Certified copy of the statement
Ex.D4 Appointment Letter
Ex.D5 Offer letter
Ex.D6 Reply Notice
Ex.D7 Postal Acknowledgement Due Card
XIX ACMM, B'lore.