Bangalore District Court
Smt. Niramala vs Sri B. Ramesh on 1 July, 2016
IN THE COURT OF THE XIX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY.
Dated this the 1st day of July, 2016
PRESENT: SMT. ISHRATH JAHAN ARA, B.A.L., L.L.B.,
XIX ADDL.C.M.M.BANGALORE.
Case No: CC No. 11755/2009
Complainant: Smt. Niramala
W/o. Chandrashekar,
Aged about 51 years,
R/at No.6718, 9th Cross,
1st Floor, B.T.S. Main Road,
Wilson Garden,
Bengaluru -560 027.
Accused: Sri B. Ramesh
C/o. B. Mohan (Ex-Councilor)
Age Major,
R/at No.12, Bhuvaneshwari Road,
Bengaluru -560 045.
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: 1st July 2016
JUDGMENT
The complainant has filed this complaint u/s. 200 of Cr.P.C. against the accused for the offences punishable u/s.138 of N.I. Act.
2. The Complainant stated that the Accused is well known to her and out of acquaintance, approached this Complainant in the 2 C.C No.11755/2009 month second week of January, 2008 for a hand loan of Rs.2,25,000/- for his family necessities and personal commitments. The Complainant by considering the request of the Accused, had advanced a sum of Rs.2,25,000/- by way of cash and after receipt of the loan amount, the accused had assured to repay the said amount within 4 months. After repeated requests and demand made by the Complainant for repayment, finally the accused had issued a cheque bearing No.531172 dtd.14.6.2008 for Rs.2,25,000/- drawn on Textile Co-op. Bank Ltd., Devanga Market, Jumma Masjid Road, Bengaluru - 560 002 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 on the assurance of the accused, presented the cheque before her Banker Karnataka Bank Ltd., Wilson Garden branch, Bengaluru for encashment but the said cheque returned dishonoured with an endorsement "Account closed" on 19.6.2008 and the same was informed to this Accused.
4. She further stated that as the Accused has failed to make payment of the cheque amount, she got issued the Legal Notice on 7.7.2008 through RPAD as well as under Certificate of Posting calling upon the Accused to make payment of the cheque amount along with 3 C.C No.11755/2009 interest at the rate of 24% per annum, within 15 days from the date of receipt of notice and the said notice was duly served upon this accused. After receipt of the Legal Notice, has neither chosen to make payment of the cheque amount nor he has sent his reply by denying the transaction. The Accused knowing fully well that his account was already been closed, had issued a bogus cheque only with an intention to cheat this Complainant and thereby, the Accused has committed an offence punishable u/Sec.138 of N.I. Act.
5. 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 his counsel and he was enlarged on bail. Plea of accusation was read over to the accused. The accused pleaded not guilty and claims to be tried.
6. The complainant got examined herself as PW1 and she got produced 5 documents marked as Ex.P1 to Ex.P5 and closed her side of evidence.
7. After closure of the complainant side evidence, accused Statement u/Sec.313 Cr.P.C. recorded and read over to the accused. The accused denied the incriminating evidence in toto. The accused has not led any evidence from his side.
4 C.C No.11755/2009
8. I have heard the arguments and perused the records. The learned Counsel for the accused has also filed his written arguments.
9. The only point arise for my consideration is:
1. Whether the Complainant has proved the guilt of the accused u/Sec.138 of N.I. Act beyond all reasonable doubts?
2. What order?
10. 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:
11. Point No.1: The entire burden is on the complainant to prove her case and also to prove the above point. In order to prove the same, the Complainant stepped in to the witness-box, got examined as PW1 and filed her affidavit in lieu of the oral evidence by reiterating the complaint averments.
12. PW1 deposed that the Accused is well known to her and out of acquaintance, she had advanced the hand loan of Rs.2,25,000/- by way of cash to this accused on his request and after receipt of the loan amount, the accused in order to repay the loan amount, had issued his cheque bearing No.531172 dtd.14.6.2008 for Rs.2,25,000/- drawn on 5 C.C No.11755/2009 Textile Co-op. Bank Ltd., Devanga Market, Jumma Masjid Road, Bengaluru -560 002 with a request to present the said cheque for encashment and on the assurance of the accused, she presented the cheque before her Banker for encashment but the said cheque returned dishonoured with an endorsement "Account closed" on 19.6.2008 and the same was informed to this Accused.
13. She further deposed that as the Accused has failed to make payment of the cheque amount, she got issued the Legal Notice on 7.7.2008 through RPAD as well as under Certificate of Posting calling upon the Accused to make payment of the cheque amount and the said notice was duly served upon this accused. She deposed that after receipt of the Legal Notice, the accused has neither chosen to make payment of the cheque amount nor he has sent his reply by denying the transaction. She deposed that the Accused knowing fully well that his account was already been closed, had issued a bogus cheque only with an intention to cheat her and thereby, the Accused has committed an offence.
14. PW1 in order to prove her case got produced Cheque issued by this Accused marked as Ex.P.1. She deposed that the signature found on Ex.P.1 is that of this Accused, she got identified the signature of this Accused marked as Ex.P.1(a). She got produced 6 C.C No.11755/2009 bank endorsement marked as Ex.P.2. She got produced copy of Legal Notice along with the RPAD receipt marked as Ex.P.3 and Ex.P3(a) respectively. She got produced the postal acknowledgement due card for having served the notice to the accused marked as Ex.P4. She got produced the C.O.P. receipt marked as Ex.P.5.
15. The Accused has denied the entire case of the Complainant and also denied the very fact that he borrowed hand loan of Rs.2,25,000/- from this Complainant and towards discharge of the said loan amount, he had issued his Ex.P.1 cheque and the same was bounced. The Learned Counsel for the Accused subjected PW1 for cross-examination and he extensively cross-examined the PW1.
16. PW1 in her cross-examination stated that she advanced the loan amount to this accused in the second week of January 2008 and at the time of loan transaction there were no witnesses present and even she has not insisted this accused to execute any document in her favour for the security of the loan amount of Rs.2,25,000/-. Moreover, she has stated the accused himself after writing all the contents of the cheque, written date on the cheque and issued the cheque in her favour towards the repayment of the loan amount. PW1 stated that she is not remembered what is the date of the cheque but she has presented the cheque for encashment in the month of June 2008. 7 C.C No.11755/2009
17. The accused has denied the very fact that he in the month of June 2008 by disclosing the date on the cheque as 14.6.2008 issued the cheque in favour of this Complainant towards repayment of the loan amount. The accused has disputed the very date of cheque disclosed on Ex.P1. The Complainant through out the proceedings even in Ex.P3 notice disclosed the loan transaction on 10.6.2008 and disclosed the date of cheque as 14.6.2008. Even in the affidavit evidence PW1 furnished the very same dates regarding the cheque. However, on perusal of Ex.P1 cheque, it pertaining to the date 14.6.1998. The notice averments as well as the complaint averments and also the affidavit evidence averments, the date of cheque was disclosed as 14.6.2008, however, as I have discussed supra, the Ex.P1 discloses the date as 14.6.1998. The oral and documentary evidence adduced before this court by the Complainant is contrary to the date of cheque. The PW1 has utterly failed to convince this court out of these two contrary dates of cheque, which one has to be believed by this court and which one is the true and correct. No doubt, the PW1 has stated that she presented the said cheque before her banker in the month of June 2008 and the said cheque returned dishonoured with an endorsement "Account closed" on 19.6.2008.
18. As I have discussed supra, if the date of cheque is taken into consideration, the PW1 presented the cheque before her banker for 8 C.C No.11755/2009 encashment after long lapse of 10 years and it is hopelessly barred by limitation. No doubt the Ex.P2 document was not issued by stating that cheque was out- dated. However, the bank has issued the endorsement by stating that the account closed. Merely because the bank has not dishonoured the cheque as it is out-dated, it will not become automatic that the cheque was dated 14.6.2008 and this Complainant presented the said cheque before her banker well within the period of limitation as prescribed u/Sec.138 of N.I. Act. As I have discussed supra, on perusal of Ex.P1 it clearly proves that the cheque was dated 14.6.1998 and till the year 2008 it was outdated cheque.
19. Moreover, the PW1 in order to prove the loan transaction and also to prove the advancement of loan amount of Rs.2,25,000/- except adducing the oral evidence, has utterly failed to prove the existence of debt or other liability as on date of Ex.P1 cheque. There is nothing on record to believe that the accused after admitting his liability to repay the loan amount, had issued his Ex.P1 cheque on 14.6.2008 and the same was bounced on its presentation. The oral and documentary evidence adduced before this court by this PW1, is contrary to the complaint averments as well as to the documentary evidence.
20. Moreover, the PW1 in order to prove her financial capacity to advance the loan amount of Rs.2,25,000/- to this accused on his 9 C.C No.11755/2009 request, has not chosen to produce any piece of document before this court. There is nothing on record to believe the loan transaction and also to believe the issuance of Ex.P1 cheque on 14.6.2008 towards repayment of the loan amount .
21. Admittedly, the Complainant in this proceedings neither demanded interest on the loan amount nor she has deposed before this court that she demanded this accused to pay interest on the loan amount. Even 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.2,25,000/- to this accused. These doubts have not been cleared by this Complainant by adducing cogent and convincing evidence before this court to believe the testimony of PW1 and to believe her documents.
22. Moreover, PW1 has not produced any documents before this court to prove that she had with him a sum of Rs,2,25,000/- to advance the same to this accused and she advanced this said amount to this accused on his request.
23. Even though the accused has denied the issuance of Ex.P1 cheque in favour of PW1 towards repayment of the loan amount however, he has categorically admitted the fact that the Ex.P1 cheque is belonged to his bank account number and even admitted his 10 C.C No.11755/2009 signature found on Ex.P1 marked as Ex.P.1(a). The accused has taken up the specific defence that he had given his duly signed blank cheque as a security to the loan amount of his relative and this Complainant by misusing his duly signed blank cheque, issued on 14.6.1998, misused his cheque by creating and concocting the cheque as Ex.P1 dtd.14.6.2008, filed this false complaint based on the created documents.
24. As I have discussed supra, though PW1 in her cross- examination has denied the entire suggestions put to her on the contrary, 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 admitting his liability and to repay the loan amount, had issued his 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 prove her case and to believe her testimony that as on date of Ex.P1 cheque there exiting a legally dischargeable debt or other liability on this accused. 11 C.C No.11755/2009
25. Likewise, the PW1 except adducing the oral evidence that she had with him a huge amount of Rs.2,25,000/- and she advanced the said amount to this Accused on his request as a loan, has not chosen to prove the same by adducing the documentary evidence before this court.
26. Admittedly, the burden is on the PW1 to prove that she had the financial capacity to advance the huge amount of Rs.2,25,000/- and she advanced the said amount to the accused on his request. In order to prove this fact, there is no evidence from the side of this Complainant.
27. As I have discussed supra, the PW1 except adducing the oral evidence that she had advanced a huge loan amount of Rs.2,25,000/- to this Accused on his request, which has been categorically denied by this Accused, nothing has been placed before this court to believe her 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.
28. 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.2,25,000/- in favour of this Accused and 12 C.C No.11755/2009 also issuance of Ex.P.1 cheque towards the repayment of the loan amount.
29. 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.
30. Even though the accused has not led his evidence from his side to prove his defence, however the entire burden is on this Complainant to prove her case and to prove that as on date of Ex.P1 cheque there existing a legally recoverable debt or other liability on this accused and he by admitting his liability and in order to repay the loan amount, had issued his Ex.P1 cheque and the same was bounced. The initial burden is always on this Complainant to prove her case on the strength of her own evidence. Unless the Complainant discharge her burden, the burden will not shift on this accused to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act. Moreover, it is well settled principle of law the accused need not prove his defence beyond all reasonable doubts to the satisfaction of the court. The accused can very well discharge his burden by preponderance of probabilities even by cross-examining PW1 by eliciting the truth from her mouth. Here in this case, the accused by 13 C.C No.11755/2009 cross-examining PW1, has successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act.
31. 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 his liability in order to discharge his liability, had issued his Ex.P1 cheque.
32. As I have discussed supra, the Complainant in order to prove this fact, except adducing the oral evidence that she advanced the huge loan amount of Rs.2,25,000/- to this accused and this accused towards repayment of the loan amount, had issued Ex.P1 cheque on 14.6.2008, has not chosen to prove the same to the satisfaction of the court.
33. 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 she had the financial capacity to advance the huge amount of Rs.2,25,000/- to this Accused.
14 C.C No.11755/2009
34. Here in this case, the Complainant except adducing the oral evidence that she had advanced the huge loan amount of Rs.2,25,000/- in favour of this Accused and towards repayment of the said loan amount, the Accused had issued Ex.P.1 cheque dtd.14.6.2008, has miserably failed to prove her 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 his liability to repay the loan amount.
35. The learned Counsel for the Complainant has vehemently argued that the Accused has totally failed to prove his defence to the satisfaction of the court that the accused has issued his duly signed blank cheque as a security of the loan amount of his relative and this Complainant by misusing the duly signed blank cheque, created he same as Ex.P1 and filed this false complaint. He further argued that by misstate and oversight the date of cheque was wrongly written as 14.6.1998 instead of 14.6.2008 on the Ex.P1 cheque and only because the date was wrongly disclosed on the cheque, the complaint cannot be dismissed. He has argued that the Complainant before filing of this complaint issued statutory notice as per Ex.P3 well within the period of limitation and the said notice was duly served upon this accused. He further argued that even inspite of receipt of Legal Notice, the 15 C.C No.11755/2009 accused neither chosen to make payment of the cheque amount nor he has sent his reply by denying the transaction. He has argued that by drawing an adverse inference against this accused that he after receipt of Legal Notice, by admitting the contents of the notice, did not resisted the claim of the Complainant by sending his reply. 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.
36. He further argued that the accused except cross-examining the PW1, has not adduced his oral evidence before this court that his cheque was misused by this Complainant. He has argued that the accused has not chosen to prove his defence. The accused neither lodged any complaint against this Complainant for misusing his cheque issued towards the security of the loan amount of his relative nor he has initiated any legal action for misusing his duly signed blank cheque and created the same for Rs.2,25,000/-. He further argued that the accused only with an intention to ran away from his liability to pay the cheque amount, has taken up the false defence before this court during the stage of trial.
16 C.C No.11755/2009
37. He further argued that the Ex.P1 cheque is belonged to this accused and even the signature found on the said cheque 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 he 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.
38. As I have discussed supra, admittedly, the Complainant except adducing the oral evidence that she had the financial capacity to advance the huge loan amount of Rs.2,25,000/- 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 her financial capacity to advance the huge loan amount of Rs.2,25,000/- to this Accused without claiming any interest on the loan amount. As I have discussed supra, the Complainant except adducing the oral evidence, has totally failed to prove her case by adducing documentary evidence before this court to the satisfaction of the court. Merely because, the accused has failed to led his evidence before this court, it does not 17 C.C No.11755/2009 become automatic that the Complainant has proved her case beyond all reasonable doubts to the satisfaction of the court.
39. Likewise, there is no burden on this Accused to prove his defence beyond all reasonable doubts and this accused can very well discharge his burden by preponderance of probabilities and even by cross-examining PW1 and this Accused by cross-examining PW1 before this court, has successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act. In such situation, arguments of the learned Counsel for the accused that the entire burden is on this Complainant to prove her financial capacity to advance the huge loan amount of Rs.,2,25,000/- and to prove that the accused towards repayment of the loan amount issued his cheque in favour of this Complainant, is fully convinced this court. Likewise, his further arguments that the Ex.P1 cheque is pertaining to the year 1998 and it is a out-dated cheque when the same was presented before the bank for encashment, is also fully convinced this court. His arguments that the Complainant has totally failed to prove that as on date of Ex.P1 cheque there existing a legally dischargeable debt or other liability on this accused and he by admitting his liability, had issued his Ex.P1 cheque and the same was bounced, is also convinced this court.
18 C.C No.11755/2009
40. Admittedly, there is no burden on this Accused to prove his defence beyond all reasonable doubts. The Accused can very well discharge his burden by preponderance of probabilities and he has successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act.
41. As I have discussed supra, the Complainant has utterly failed to prove her 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 her 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 he is liable for punishment. In such situation, the benefit of doubt goes in favour of this Accused. Hence, by taking into consideration of the facts and circumstances and evidence available on record, I answer Point No.1 in the Negative.
19 C.C No.11755/2009
42. 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/Sec.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 bond 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 1st day of July, 2016) (ISHRATH JAHAN ARA) XIX ADDL.C.M.M., Bangalore ANNEXURE:
Witnesses examined on behalf of the Complainant: PW.1 Mrs. Nirmala Witnesses examined on behalf of the Accused: Nil 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.3(a) RPAD receipt
Ex.P.4 Postal Acknowledgement Due Card
Ex.P.5 UCP Receipt
Documents marked on behalf of the Accused:
Nil
XIX ACMM, B'lore.
20 C.C No.11755/2009