Bangalore District Court
Smt.Ashwini vs Smt.Swetha.A.L on 7 October, 2020
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 7th day of October - 2020
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.26561/2018
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Smt.Ashwini,
W/o.Prabhu.G.K,
Aged about 32 years,
R/at No.431, 6th Main,
Kengeri Satellite Town,
Bengaluru-30.
(Rep. by M/s. Tomy Sebastian Associates
Advocates.)
V/S
Accused : Smt.Swetha.A.L,
W/o.Govindaraju,
Aged about 27 years,
R/at. No.16, 7th Cross,
Gandhi Nagar, K.S.Town,
Bengaluru-60.
(Rep.by Sri.K.Venkatesh Murthy, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Acquitted.
DATE OF ORDER : 07.10.2020.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
Judgment 2 C.C.No.26561/2018
JUDGMENT
The complainant has presented the instant complaint against the accused on 06.09.2018 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheque of Rs.10 lakhs.
2. The brief facts of the complainant case is as follows:
The complainant in the resident of Kengeri and she is staying along with her husband, son and daughter. The accused was her neighbour and has known to the complainant from several years. The complainant runs a small provision store in the same premises as that of her residence.
The complainant has averred that, initially the accused along with her mother - Leelamma would frequently visit the store of the complainant make some purchases and it would ended upto having causal conversations. With the passage of time, their relationship grew and became very good friends. The accused started discuss in her family members and told the complainant that, she was undergoing marital problems and her husband was not willing to accept her until she arranges for some money for him to start the business. The complainant resonated with the accused as the complainant herself was going divorce Judgment 3 C.C.No.26561/2018 proceedings against her 1st husband and accused knew about the same. During September, 2015, the case in M.C.No.3723/2010 filed by the complainant against her former husband B.C.Krishna was delivered and under the settlement she received sum of Rs.4 lakhs. The accused and her mother knew that settlement. The very next day, the accused along with her mother - Leelamma approached the complainant and requested her to lend money for a tune of Rs.10 lakhs by alleging that, her husband has threatened to divorce her if the money was not arranged in time. In the legal notice due to clerical error it is written as Rs.8 lakhs instead of Rs.10 lakhs. The complainant told the accused that, she did not have the required fund, but accused along with her mother kept persisting and told the complainant that, if she could lend them, they promise to return it within a span of two months. Initially, the complainant was hesitant, but later, she succumbed to her demands and they induced the complainant to part with the money. The money received from the complainant's Ex-husband and additional sum of Rs.6 lakhs which she earned from her business. The accused executed a document promising to return the money within 2 months from the date of receipt. A few months thereafter, when the complainant asked to return the money, she kept avoiding the same on one or other pretext.
Judgment 4 C.C.No.26561/2018 The complainant has further alleged that, since she was repeatedly insisting the accused for the money, in the month of March, 2018, the accused gave the complainant a cheque for sum of Rs.10 lakhs dated:01.08.2018 towards discharge of legally recoverable debt. After the accused issued the cheque, she vacated the rented premises without informing the complainant. It is only later she came to realized that, apart from her the accused has also taken money from several people by making false promises and she had cheated them. That apart, the accused as well as her mother have jointly tried to threaten the complainant with the dire consequences which forced the complainant to lodge a complaint against her at Kengeri Police Station. Later, the accused approached the complainant and apologized to her and requested not to initiate any proceedings and promised her that, cheques can be presented on 01.08.2018.
The complainant has further contended that, believing the representation of the accused, complainant had presented the cheque on 01.08.2018 for encashment through her banker viz., Canara Bank, Byatarayanapura, Kengeri Branch, Bengaluru, and the same was returned on 03.08.2018 stating cheque was came to be dishonoured for the reasons "Funds Insufficient". From the Judgment 5 C.C.No.26561/2018 conduct of the accused it is clear that, her main intention was to cheat the complainant to the tune of Rs.10 lakhs.
The complainant has further alleged that, she got issued legal notice to the accused on 07.08.2018 by R.P.A.D and the same were received by the accused on 09.08.2018. Despite that, the accused has not paid the amount covered under the cheque. Thereby, she committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
3. After receipt of the private complaint, this court took the cognizance and got registered the PCR and recorded the sworn statement. Since made out prima-facie grounds to proceed against the accused for the alleged offence, got issued process.
4. In response to the summons, the accused appeared through her counsel and obtained bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to her, wherein, she denied the same and claimed to have the defence.
5. To prove the case of the complainant, she herself choosen to examined as PW.1 and got marked Exs.P1 to P13(a). The PW.1 was subjected for cross-examination by the advocate for the Judgment 6 C.C.No.26561/2018 accused. In the cross-examination of PW.1, accused counsel got confronted three documents and same are marked as Exs.D1 to D3.
6. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein the accused denied the same and answer given by her was recorded. In this case, the accused has not choosen to enter into witness box.
7. I have heard the arguments of both side counsels through video conference. The complainant counsel has also submitted his detailed written arguments.
8. On going through the rival contentions, based on the substantial evidence available on record, the following points have been arising for determination:
1) Whether the complainant proves beyond the reasonable doubt that, she paid sum of Rs.10,00,000/- as hand loan to the accused, and in turn, for discharge of legal recoverable debt, the accused issued the Ex.P1 cheque bearing No.041036, dated:01.08.2018 for sum of Rs.10,00,000/- drawn on Corporation Bank, Kengeri Satellite Town Branch, Bengaluru?
2) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?
3) What Order?
Judgment 7 C.C.No.26561/2018
9. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Negative Point No.2 : In the Negative Point No.3 : As per final order, for the following:
REASONS UNDIPSUTED FACTS:-
10. On going through the rival contentions of the parties, the fact that, the knowingness of the complainant and accused is not in dispute. The fact that, the complainant was residing in the cause title address and accused was resided in the rented house as mentioned in the complaint is not in dispute. The fact that, the complainant got divorced from her former husband by name B.C.Krishna in M.C.No.3723/2010 is not in dispute. The fact that, as per her clear cut admission, through Bengaluru Mediation Center, her matrimonial dispute with her former husband came to be ended, wherein her former husband undertakes to pay Rs.4,50,000/- is not in dispute. As per say of PW.1,her former husband on 10.04.2015 gave Rs.1 lakh and on 22.09.2016 gave Rs.2,50,000/- and rest of money Rs.10,000/- per month got paid Judgment 8 C.C.No.26561/2018 to her and on or before 22.09.2015 the agreed amount of Rs.4,50,000/- entirely paid by her husband is not in dispute.
The fact that, questioned cheque at Ex.P1 and signature therein belongs to the accused is not in dispute. The fact that, the said cheque is dated:01.08.2018 is not in dispute. It is undisputed fact that, before presenting the said cheque for encashment by the complainant, the accused as per Ex.D2 gave legal notice through her counsel to the complainant and 3 others by names Ancy Joseph, L.P.Anthony Joseph and Wasim dated:27.07.2018 is not in dispute. The fact that, the said notice as per her admitted signature found in postal acknowledgment at Ex.D1 got served on complainant is not in dispute. The fact that, the said notice was sent to the complainant by post as found in postal receipt at Ex.D3 is not in dispute.
The fact that, Leelamma is the mother of accused is not in dispute. The fact that, on 12.07.2018 itself the complainant herein had lodged complaint against the accused in Kengeri Police Station is not in dispute. The fact that, Ancy Joseph has filed cheque bounce case for Rs.23 lakhs against the accused herein before this court is not in dispute. The fact that, the said Ancy Joseph was very much known to the complainant and she was Judgment 9 C.C.No.26561/2018 very much present as on the date of PW.1 subjected for cross- examination on 29.07.2019 is not in dispute.
The fact that, by issuance of legal notice at Ex.P3 to the accused is not in dispute. The fact that, the said legal notice, the complainant has stated accused was approached and requested for the loan of Rs.8 lakhs is not in dispute. The fact that, the service of legal notice to the accused as per Ex.P5 and P8 are not in dispute. The fact that, the Ex.P9 e-stamp paper was purchased in the name of Chandrappa, wherein mentioned accused as 2nd party which bares the date:04.09.2015 is not in dispute. The said document bares the signature of complainant and accused is not in dispute.
The fact that, the former husband of the complainant by name B.C.Krishna had filed M.C.Petition No.3723/2010 as found in Ex.P10 is not in dispute. The fact that, as per Ex.P11 the said matter was compromised between them is not in dispute. Consequently, the settlement decree was passed as per Ex.P12 is not in dispute.
11. POINT NOs.1 and 2: Since both the points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.
Judgment 10 C.C.No.26561/2018 The PW.1 to prove her case choosen to examined herself and filed affidavit by reiterating the complaint averments in toto, and produced the documents at Exs.P1 to P13(a), they are:
a) Ex.P1 is the cheque bearing No.041036 issued by the accused for sum of Rs.10 lakhs dated:01.08.2018, drawn on Corporation Bank, Kengeri Satellite Town Branch, Bengaluru.
b) Ex.P1(a) is the alleged signature of accused.
c) Ex.P2 is the Bank Memo dated:03.08.2018.
d) Ex.P3 is the office copy of Legal Notice
dated:07.08.2018.
e) Ex.P4 is the Postal receipt.
f) Ex.P5 is the Postal Acknowledgment Card.
g) Ex.P6 is the office of notice dated:09.08.2018.
h) Ex.P7 is the postal receipt.
i) Ex.P8 is the Postal Acknowledgment Card.
j) Ex.P9 is the loan agreement executed by accused in favour of complainant regarding availment of loan of Rs.10 lakhs from complainant.
k) Ex.P9(a) and P9(b) re the signatures of complainant and accused.
l) Ex.P10 is the certified copy of order sheet in M.C.Petition No.3723/2010 filed by complainant herein against her husband by name B.C.Krishna.
m) Ex.P11 is the certified copy of memorandum of settlement in M.C.Petition No.3723/2010 on the file of Hon'ble II ADDl. Principal Judge, Family Court, Bengaluru.
n) Ex.P12 is the certified copy of decree in M.C.Petition No.3723/2010 on the file of Hon'ble II ADDl.
Principal Judge, Family Court, Bengaluru.
Judgment 11 C.C.No.26561/2018
o) Ex.P13 is the private complaint and
p) Ex.P13(a) is the signature of complainant. The PW.1 was subjected to the cross-examination by the advocate for the accused. In support of her case the complainant through her counsel has produced the citations and relied upon same, they are;
a) Crl.A.No.1545/2019
b) 2006 Crl.L.J.1
c) AIR 2018 SC 3601
d) AIR 2019 SC 1876
e) ILR 2006 KAR 4672
f) LAWS (KAR) 2014 6 28
g) (2015) 17 SCC 368
h) AIR 2010 SC 1898
i) 2001 Crl.L.J.4647
12. After detailed cross-examination done by the advocate for accused to the PW.1, the complainant got closed her side. Thereafter, whatever the incriminating evidence made against the accused was read over and explained to her as required under Section 313 of Cr.P.C., wherein, she denied the same and gave her statement that, the accused in the year 2014 from the friend of complainant borrowed the loan of Rs.30,000/- only on the security Judgment 12 C.C.No.26561/2018 of signed blank cheque given to her through the complainant. The accused got repaid the said loan of Rs.30,000/- with interest, the said cheque given to the complainant were not returned to her. The complainant, Ancy Joseph and her husband together have tiled the false case against her and she is not liable to pay any money to the complainant.
13. In this case, the accused has not choosen to enter into witness box to lead her probable defence. But, at the time of cross of PW.1, accused counsel got confronted three documents and same are marked as Exs.D1 to D3. They are:
a) Ex.D1 is the Postal Acknowledgment Card.
b) Ex.D1(a) is the signature of complainant.
c) Ex.D2 is the legal notice dated:27.07.2018 issued by accused through her counsel to the complainant and 3 others and
b) Ex.D3 is the postal receipt.
14. While appreciate the materials on records and evidence, this court has gone through the decisions stated supra apart from the other decisions.
15. The complainant based on the questioned cheque at Ex.P1 has filed the present case stating that, the accused had requested the loan of Rs.10 lakhs from the complainant and undertakes to Judgment 13 C.C.No.26561/2018 repay the same within 2 months, therefore, she mobilizing money which was received from her former husband as well as additional sum of Rs.6 lakhs which are eared from her business claimed to be paid loan to the accused. As agreed, accused was not repaid, when she requested, then accused gave the questioned cheque at Ex.P1 dated:01.08.2018, the same came to be dishonoured, despite, gave legal notice she not paid money, hence, claiming the accused is committed the offence punishable under Section 138 of Negotiable Instruments Act.
16. Whereas, the accused has caused reply to the Ex.P3 legal notice, but after mark her appearance through advocate, she choosen to defend the matter through out the case. Wherein, choosen to cross-examine the PW.1 in detail and by way of confrontation got marked Exs.D1 to D3.
17. On going through the rival contentions of the parties, it made clear that, the complainant brought the present case based on the questioned cheque at Ex.P1 by claiming the accused is liable to pay the amount covered under therein has not repaid, despite, issued legal notice after dishonour of cheque. Therefore, it made clear that, as per Section 118 Negotiable Instruments Act, the statutory presumption has to be drawn in favour of Judgment 14 C.C.No.26561/2018 complainant that, cheque had been issued for the consideration and until contrary is prove, such presumption would holds good. As per Section 139 of Negotiable Instruments Act, it also made clear that, the necessary to draw the statutory presumption in favour of complainant based on the questioned cheque that, unless the contrary is prove, the complainant being a holder of the cheque received the Ex.P1 cheque of the nature referred in Section 138 of Negotiable Instruments Act, for the discharge of in whole or in part of any debt or other liability. Therefore, by virtue of Sections 118 and 139 of Negotiable Instruments Act, it made clear that, initial statutory presumption is in favour of complainant, but subject to the rider, unless and until contrary prove. Therefore, it made clear that, it is initial burden on the accused to prove her probable defence.
18. As per decision reported in 2019 SCC Online SC 389, in a case between Rohith Bai Jeevan Ltd., V/s State of Gujarath. Wherein, the Division Bench of Hon'ble Apex Court pleased to observed that, the onus though shifts on the accused to establish a probable defence so as to rebut such presumption. Wherein, it was also pleased to observed that, presumption it was needed to be drawn by the Court Under Section 118 of Negotiable Instruments Act, would oblige the court to presume that cheque Judgment 15 C.C.No.26561/2018 had been issued for consideration and only contrary is prove, such presumption would hold the ground. Wherein, it was also pleased to observed that, the test of proportionality should guide the construction and interpretation reverse onus clauses and the accused cannot be expected to discharge an unduly high standard of proof. In the absence of compelling justification, reverse onus clauses usually impose to evidentiary burden and not a persuasive burden. It is settled position that, when accused has to rebut the presumption under Section 139 of Negotiable Instruments Act, the standard of proof doing so is that of "preponderance of probabilities". Therefore, if the accused is able to raise the probable defence, which creates a doubt to the liability, the prosecution can fail. As clarified in the citation, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that, in some cases the accused may not need to adduce evidence of her own. In the said dictum, it also observed that, the accused also may rely upon presumption of fact, for instance, those mentioned in Sections 114 of the Evidence Act, to rebut the presumption arising under Sections 118 and 139 of Negotiable Instruments Act.
19. Accordingly, it made clear that, it is the initial burden on the accused needs to prove her probable defence under the principal Judgment 16 C.C.No.26561/2018 of preponderance of probabilities. It is capable to raise doubts as to the existence of legally recoverable debt or liability, then whatever the statutory presumption supports the case of complainant would fail. Therefore, it is just and proper to appreciate the evidence of accused on priority coupled with appreciation of the defence taken during the course of cross of PW.1.
However, it is an appropriate to cite the decisions of the Hon'ble Supreme Court in (2008) 2 Supreme Court Cases (Criminal) 166 (Krishna Janardhan Bhat V/s. Dattatraya G Hegde) and 2010 AIR SCW 2946 (Rangappa V/s. Mohan).
"The accused need not enter into witness box and he could rebut the presumption envisage under Section 139 of Negotiable Instruments Act by setting up a probable case. As such, there is no strict rule that, the accused should enter into the witness box in support or proof of his defence. The accused has got every right to prove his defence from the cross- examination of PW.1 or the materials already brought on record. It is also held that, the standard of evidence be to led by the accused is preponderance of probabilities and no proof beyond reasonable doubt. On the contrary, for the complainant he should prove his case beyond all reasonable doubt".
Judgment 17 C.C.No.26561/2018
20. As per the said dictum, the accused need not require to enter in to the witness box to prove her probable defence, but she can prove her defence by way of cross-examining the PW.1 and relied upon the documents of the complainant. From the point of above dictum, the non entering into the witness box by the accused is not a ground or hindrance to her probable defence. Therefore, the non entering into witness box is a ground to prejudice the case of complainant. Therefore, it requires to appreciate the evidence placed by the complainant as well as probable defence placed by her during the course of cross of PW.1 coupled with relied the documents of the complainant as well as Exs.D1 to D3.
21. It is significant fact to note that, the accused has not admitted the claim put forth by the complainant. The accused before the complainant ventured into initiate action on the Ex.P1- cheque dated:01.08.2018, admittedly, accused as per Ex.D2 got issued legal notice to the complainant and other 3 persons dated:27.07.2018. On going through the Ex.D2 issued much earlier to the present to the date of cheque and its presentation it discloses, the accused was made serious allegation against Ancy Joseph, her husband L.P.Anthony Joseph, complainant herein as well as Wasim. There was allegation made against Ancy Joseph Judgment 18 C.C.No.26561/2018 and her husband L.P.Anthony Joseph has to troubling the accused, who is not residing with her husband and widow mother, as they have no categorically takers, L.P.Anthony Joseph used to behave abnormally with the accused and expressed as sexual desire in one way or other. The accused has not responded to him and advised her wife and others to behalf properly. But they have not stopped doing so. Apart from that, the said L.P.Anthony Joseph being a real estate business man, took the original documents of accused mother Leelamma situated at Anakanahalli Village, Belur Hobli, Nagamangala Taluk, Mandya District in order to sell her agricultural property, but not sell nor returned the documents and he started blackmail to the accused and his mother. As they were single woman and he knew what todo. No doubt, what is the allegations made by the accused against Ancy Joseph and L.P.Anthony Joseph are not subject matter of the present case. But the appearance of Ancy Joseph though she had filed separate cheque bounce case for Rs.23 lakhs against the accused, she was very much present in the case of the complainant came to be seen in deposition of PW.1.
22. During the course of cross of PW.1, it was recorded that:
Judgment 19 C.C.No.26561/2018 "D¤ì eÉÆøɥsï PÀÆqÀ DgÉÆæAiÀÄ «gÀÄzÀÞ gÀÆ.23 ®PÀëPÉÌ EzÉà £ÁåAiÀiÁ®AiÀÄzÀ°è ZÉPï ¨Ë£ïì ¥ÀæPÀgÀtªÀ£ÀÄß zÁR°¹zÁÝgÉ. ¸ÀzÀj D¤ì eÉÆøɥsï PÀÆqÀ F ¢£À £ÁåAiÀiÁ®AiÀÄzÀ°è, ¸ÁQëAiÀÄ »A§¢AiÀÄ°è ¤AvÀÄ, ¥Ánà ¸ÀªÁ®£ÀÄß D°¸ÀÄwÛzÀÝgÀÄ. DPÉAiÀÄ ¥ÀæPÀgÀt F ¢£À EgÀĪÀÅ¢®è, D¤ì eÉÆøɥsï gÀªÀgÀÄ ¢£ÁAPÀ 08.08.2019 gÀAzÀÄ DPÉAiÀÄ ¥Ánà ¸ÀªÁ°UÉ EzÉ JAzÀÄ £ÀÄr¢zÀÄÝ, DPÉAiÀÄ£ÀÄß £ÁåAiÀiÁ®AiÀÄzÀ ¸À¨sÁAUÀt¢AzÀ ºÉÆgÀUÉ PÀ¼ÀÄ»¸À¯Á¬ÄvÀÄ."
23. The said testimony of PW.1 reveal that, the complainant also knew that, Ancy Joseph had filed separate cheque bounce case against the accused herein for Rs.23 lakhs. Even it also noted that, very said Ancy Joseph while PW.1 subjected her cross-examination, she stood behind her and listened her cross- examination. When enquired, the said Ancy Joseph, she deposed her case is not on the said day, but it was on 08.08.2019, therefore, since she appears to be is very much interesting to participate in the proceedings and listening the evidence led by the PW.1, she was sent out. Therefore, the nexus of Ancy Joseph with complainant can be seen in the notice issued by the accused at Ex.D2 as well as in the cross-examination of PW.1. No doubt, the transaction between Ancy Joseph and with her husband as well as if any with Wasim against whom the accused was issued Judgment 20 C.C.No.26561/2018 notice at Ex.D2. Except the complainant, the allegation made by the accused against other 3 persons no need to seriously focus in the present case on hand.
24. On going through the Ex.D2 notice gave in common to the above 4 persons including complainant before Ex.P1-cheque dated:01.08.2018 came in to picture is to be seen. The accused at the earliest point of time, the accused before initiate action on the Ex.P1-cheque, she made serious allegation against the complainant in para No.5 at Ex.D2, which runs thus:
"Out client instructs under Section 138 of Negotiable Instruments Act to state that, taking undue advantage of our client's position and also in order to support you, Noticee No.3 and 4 also supported such illegal acts of you Noticee No.2 by filing false complaint against our client on 12.07.2018 that to on same day before Kengeri Police Station and after enquiring both the sides the Kengeri police had issued NCR. Infact, you Noticee No.3 being the known person and neighbour had financial transaction and use to give and taken money with my client up to 2014. Such being the case, in several transactions you had taken a blank signed cheque from out client and after the said Judgment 21 C.C.No.26561/2018 police complaint, you also started threatening out client that, you will use the signed blank cheque for more amount. My client further instructs under Section 138 of Negotiable Instruments Act to state that, there was no transaction between our client and Noticee No.4".
25. On going through the said contention raised by the accused much earlier before Ex.P1-cheque came into operates, the accused through her counsel got issued the said legal notice wherein, specifically alleged against the Noticee No.3 - complainant herein and Noticee No.4 by name Wasim stating that, they have supported to Ancy Joseph and her husband by filing false complaint against the accused in Kengeri Police Station on 12.07.2018. The said contention discloses before the Ex.P1- cheque presented for encashment, the husband of Ancy Joseph already lodged complaint on 12.07.2018.
26. It is also stated that, the said police gave NCR. That apart, the defence was set out by the accused that, the complainant being known person and neither of the accused, had financial transaction and used to give and take money with the accused up to 2014 only. By stating so, it was admitted by the accused, there was giving and taking money between complainant and accused Judgment 22 C.C.No.26561/2018 was only up to 2014. It is also specifically contended that, in the several transactions the complainant alleged to be taken a signed blank cheques from the accused and after the said police complaint, complainant had also started threatening the accused that, she will use the signed blank cheque for more amount.
27. On going through the said defence urged by the accused in the notice at Ex.D2 dated:27.07.2018, she strongly alleged against complainant that, there was only giving and taking money transaction up to 2014 on obtaining signed blank cheque from the accused. Even it was alleged, husband of Ancy Joseph lodged complaint in Kengeri Police Station, the complainant also started threatening the accused that, she will use the signed blank cheque of the accused by mentioning more amount. Thereby, the accused has projected that, the complainant already possessed her signed blank cheque in connection to the money transaction held prior to 2014 and expressed her apprehension about the misuse of her cheque by the complainant by mentioning huge amount hence, she gave notice at Ex.D2.
28. It is significant fact to note that, the accused as per Ex.D2 much earlier to initiate action on Ex.P1-cheque dated:01.08.2018, gave notice to the complainant and others. It is also significant Judgment 23 C.C.No.26561/2018 fact to note that, as per Ex.D1 the said notice was served on complainant on or before 31.07.2018 and acknowledgment was returned to the advocate for accused on 31.07.2018. The said Ex.D1 made it clear that, whatever the contention taken by the accused against the complainant gave caution to the complainant stating that, she made threat to her about misuse of her cheque by mentioning higher amount. Despite, the accused had made serious allegation against the complainant and apprehended about misuse of her signed blank cheque, the complainant for the reasons better known to her not caused reply to the contention raised by the accused much earlier. Thereby, the complainant has accepted the very notice at Ex.D2. The complainant requires to cause reply to the Ex.D2 notice, before initiate for presentation of cheque at Ex.P1. But inspite of doing so, she choosen to present the said cheque for encashment as found in banker slip dated:03.08.2018. Non reply the notice of the accused which warrant the complainant not to misuse her signed blank cheque is one of the strong ground narrated by the accused that, there may be every chance of misuse of her signed blank cheque which is none other than Ex.P1-cheque herein. The complainant without caused reply. At least, in order to protect her interest, could have cause reply by denying the allegation made by the accused in the Judgment 24 C.C.No.26561/2018 notice at Ex.D2 before initiate action on Ex.P1-cheque dated:01.08.2018. The undoing the said act is one of the strongfull circumstances made out by the accused, as to the chance of misuse of hands of complainant.
29. No doubt, the accused has not caused reply to the legal notice issued by the complainant as per Ex.P3. Since the accused already gave legal notice and cautioned the complainant not ventured for initiate action based on her signed blank cheque obtained by the complainant as security in connection to the money transaction held prior to 2014. Therefore, non-cause reply subsequent to Ex.P3 is not a ground to accept the claim of complainant in its entirety.
30. The accused choosen to cross-examine the PW.1 and placed her defence. During the course of cross of PW.1, it was also suggested to PW.1 that:
"2014 PÉÉÌ ¥ÀǪÀðzÀ°è DgÉÆæ £À¤ßAzÀ UÀjµÀ× 20 jAzÀ 30 ¸Á«gÀzÀªÀgÉUÀÆ ¸Á®ªÀ£ÀÄß ¥ÀqÉzÀÄ ªÀÄgÀ½¸ÀÄwÛzÀÝgÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è. D ¸ÀtÚ ¸Á®zÀ ¨ÀszÀævÉUÁV DgÉÆæ¬ÄAzÀ £Á£ÀÄ ¤¦.1 gÀ ¸À» ªÀiÁrzÀ SÁ° ZÉPÀÌ£ÀÄß ¥ÀqÉzÀÄPÉÆArzÉÝ JAzÀgÉ ¸ÀjAiÀÄ®è. 2014 gÀ¯Éèà DgÉÆæ ¥ÀqÉ¢zÀÝAvÀºÀ ¸ÀtÚ ¸Á®ªÀ£ÀÄß ¸ÀA¥ÀÇtð ªÀÄgÀÄ¥ÁªÀw¹, ¨ÀszÀævÉUÁV ¥ÀqÉzÀAvÀºÀ SÁ° ZÉPÀÌ£ÀÄß ªÀÄgÀ½¸ÀĪÀAvÉ Judgment 25 C.C.No.26561/2018 PÉýPÉÆArzÀÝgÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è. £Á£ÀÄ DPÉUÉ ¸ÀzÀj ZÉPï ¸ÁÜ£À¥À®èlªÁVzÉ JA§ÄzÁV w½¹zÉÝ JAzÀgÀÉ ¸ÀjAiÀÄ®è. 2014 jAzÀ DgÉÆæAiÀÄ ¤¦.1gÀ SÁ° ZÉPÀÌ£ÀÄß £À£Àß §½ ElÄÖPÉÆAqÀÄ, £Á£ÀÄ D¤ì eÉÆøɥsï ªÀÄvÀÄÛ DPÉAiÀÄ UÀAqÀ gÀªÀgÀ ªÀiÁvÀ£ÀÄß PÉýPÉÆAqÀÄ, DgÉÆæAiÀÄ «gÀÄzÀÞ ºÉaÑ£À ªÉÆvÀÛPÉÌ ¥ÀæPÀgÀt zÁR°¸ÀĪÀÅzÁV ¨ÉzÀj¸ÀÄwÛzÉÝ£ÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è. D «µÀAiÀÄPÉÌ ¸ÀA§AzÀs¥ÀlÖAvÉ DgÉÆæ £À£Àß «gÀÄzÀÞ PÉAUÉÃj ¥Éǰøï oÁuÉAiÀÄ°è zÀÆgÀ£ÀÄß ¤ÃrzÁUÀ, ¥ÉǰøÀgÀÄ DPÉAiÀÄ ZÉPÀÌ£ÀÄß ªÀÄgÀ½¸ÀĪÀAvÉ £À£ÀUÉ w½¹zÀÝgÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è. ¥ÉǰøÀgÀ ¸ÀÆZÀ£ÉAiÀÄAvÉ, DgÉÆæAiÀÄ ZÉPÀÌ£ÀÄß £Á£ÀÄ ªÀÄgÀ½¸ÀzÉà EzÁÝUÀ, ¢£ÁAPÀ 27.07.2018 gÀAzÀÄ DgÉÆæ £À£ÀUÉ, D¤ì eÉÆøɥsï ªÀÄvÀÄÛ DPÉAiÀÄ UÀAqÀ ºÁUÀÆ ªÁ¹A J£ÀÄߪÀªÀjUÉ F ªÉÄð£À «µÀAiÀĪÀ£ÀÄß w½¹ £ÀÉÆÃn¸À£ÀÄß ªÀQîgÀ ªÀÄÄSÁAvÀgÀ PÀ¼ÀÄ»¹ PÉÆnÖzÀÝgÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è."
31. On going through the testimony of PW.1, it discloses, the defence suggested by the accused as well as answer given by the complainant. It was the specific defence from the accused that, prior to 2014 accused used to borrow maximum loan of Rs.20,000/- to Rs.30,000/- and got returned the same. While lent loan, the complainant used to collect the signed blank cheque as security. In the year 2014 itself, the accused got cleared the said small loan amount to the complainant, the requested her to return the signed blank cheque is been denied by the complainant.
Judgment 26 C.C.No.26561/2018 Whenever the accused requested for return the said cheque, the PW.1 has told her that, it was misplaced. The PW.1 has denied the same. It was also suggested to PW.1 that, since 2014 the complainant kept the signed blank cheque at Ex.P1 of the accused and on hearing the words of Ancy Joseph and her husband, for extract more money by mentioning higher amount in the cheque, she made threat to the accused is been denied by the PW.1. In that connection, the accused against the complainant lodged complaint in Kengeri Police Station, the said police have advised the complainant to return the cheque of accused is also been denied by the PW.1. Since complainant was not returned the said cheque to accused, on 27.07.2018 the accused including the complainant and 3 others such as Ancy Joseph, her husband L.P.Anthony Joseph and Wasim gave the said legal notice been denied by the PW.1. Though PW.1 has denied whatever the defence suggested by the accused, later she clearly admitted the receipt of legal notice at Ex.D2 issued by the accused much earlier. The evidence of PW.1 discloses the proximity of complainant, Ancy Joseph, her husband L.P.Anthony Joseph and Wasim, the said defence already taken by the accused as per Ex.D2. But the complainant has not choosen to cause reply and Judgment 27 C.C.No.26561/2018 no satisfactory evidence led except denied the suggestion placed by the accused.
32. The PW.1 after admitting the receipt of legal notice at Ex.D2 issued by the accused as deposed that, her advocate informed her that, as per the said notice the accused asked the complainant to apologize her. Thereby, it made clear that, much earlier accused as per Ex.D2 gave legal notice and caution the complainant and others not to venture any action based on the signed blank cheque of the accused. The said fact has to be accepted since complainant has not replied the said notice and no satisfactory explanation is forth coming with regard to the proximity of other 3 persons as suggested.
33. In this case, the accused has seriously attack on the claim of complainant including alleged request made by her and borrowing of loan as well as execution of receipt at Ex.P9 as well as issuance and execution of questioned cheque for discharge of liability of Rs.10 lakhs to the complainant. Even questioned the financial capacity of the complainant, she being a house wife. Therefore, the cross-examination done to PW.1 is to be seen coupled with appreciate the pleading as well as documentary evidence. The accused before complainant initiate action on Judgment 28 C.C.No.26561/2018 Ex.P1-cheque got issued notice at Ex.D2. Thereby, the complainant had smelt that, the accused has not accepted the claim of complainant, therefore, it is the complainant has to discloses, clear picture of the transaction held between complainant and accused if any.
34. First defence found in the Ex.P3 legal notice that, complainant had mentioned, the accused approached and requested for loan of Rs.8 lakhs. Contrary to the same, in the pleading the complainant has stated, the accused approached and requested for the loan of Rs.10 lakhs. Wherein also try to clarify that, in the legal notice at Ex.P3 it was clerically error typed as Rs.8 lakhs instead of Rs.10 lakhs. If it was Rs.10 lakhs definitely, at the earlier point of time after notice the said defect it is her to rectify by way of issue corrigendum by rectifying the amount. The said issuance of notice at appropriate stage is very much necessary as per Ex.D2 accused already it is suspected the act of the complainant as to misuse of cheque. By way of pleading the complainant try to rectify that, the amount should be Rs.10 lakhs, not Rs.8 lakhs. If it was mistake in the notice, wherein, she try to clarify by way of gave further notice, but she did not choosen todo so, is one of the strong circumstances creates as to the alleged approach and request made by accused.
Judgment 29 C.C.No.26561/2018
35. In the pleading it was pleaded that, the complainant was hesitant initially, but later the accused succumbed to her demands and they induced the complainant to part with the money. The money received from the complainant Ex-husband and additional sum of Rs.6 lakhs, which she earned from her business. On meaningful reading of those pleading, it discloses, the complainant has not stated anything about the alleged lent of loan of Rs.10 lakhs to the accused. Even not pleaded about passing of consideration from the hands of complainant to the accused. She try to plead that, out of the money received by former husband of complainant and arranged additional sum of Rs.6 lakhs from her business. But she never pleaded either in the pleading as well as in the Ex.P3 legal notice, as to the particulars of actual transmission of Rs.10 lakhs from the hands of complainant to the accused. The same is serious lacks on the part of complainant. If at all, the complainant had lent the huge amount of Rs.10 lakhs, she needs to explain, how she mobilized the said huge amount and where, when, on whose presence, on which security she got transfer the said money in the hands of accused, but no such basic pleading is not put forth by the complainant. The said particulars are very much necessary in order to accused to take Judgment 30 C.C.No.26561/2018 necessary stands, but there is serious lacks on the part of complainant.
36. That apart, the accused has convinced this court that, in the pleading the complainant has contended that, she promised to repay the money within span of 2 months and also the complainant has contended, the accused executed document promising to repay the loan within 2 months from the date of receipt. No doubt, the complainant has relied upon Ex.P9 e- stamp document and contended, it was executed by the accused. The advocate for accused, while address arguments as minutely focused on its recitals. On close perusal of the recitals it discloses, stamp paper was purchased on 04.09.2015 by Chandrappa as a 1st party, the 2nd party name is mentioned as Swetha.A.L. Therefore, it discloses, the stamp paper was purchased by Chandrappa, who is not a party to the present proceedings and who is not cite as witness by the complainant in order to know who authorized him to did so. Thereby, it creates doubt as to the genuineness of the purchasing of e-Stamp Paper as alleged by the complainant in connection to the present transaction.
Judgment 31 C.C.No.26561/2018
37. That apart, it also suspected the recitals made at Ex.P9. The advocate for the accused has strongly alleged that, it was not executed by the accused if at all, any loan document require to be executed definitely, it could have been right on 2 sides, but it ended within 8 lines. Therefore, suspected the Ex.P9 is created one. On close perusal of the recitals at Ex.P9, wherein, it is mentioned that, the accused have received sum of Rs.10 lakhs from the complainant and she agreed that, she will return the same amount within six months from this date. As on the date of issue legal notice at Ex.P3 dated:07.08.2018 as well as on the date of filing present complaint. If at all, the complainant had possessed the Ex.P9 the alleged document executed by the accused definitely, there is no need to mention, she agreed to repay within 2 months, contrary to the recitals at Ex.P9. Therefore, there is contradiction in mentioning the period of repayment pleading as well as document at Ex.P9. Therefore, it is also one of the strong doubtful circumstances arise in order to rely upon the receipt executed by the accused.
On going through the Ex.P9 it appears to be the unilateral document alleged to be executed by accused in favour of complainant. Under such circumstances, unless the citing on name and address of the complainant no need to her sign at Judgment 32 C.C.No.26561/2018 Ex.P9(b). Therefore, how she has sign unless there was bilateral loan agreement was entered into between them is also created doubt. The Ex.P9 no more comes to the rescue of the complainant, as one Chandrappa had purchased e-Stamp Paper.
38. That apart, if at all, the Ex.P9 was in the hands of complainant as on the date of alleged issuance of legal notice and filing of private complaint, definitely, she must knew that, the alleged loan transaction as per Ex.P9 was held on 04.09.2015. The complainant needs to mention the said date as the transaction were happened in between the complainant and accused. On going through the complaint affidavit and legal notice of the complainant, she was very much silent in disclosing exactly, when and where the alleged transaction took place. Therefore, it leads to draw the inference that, since Ex.P9 was not there much earlier before filing present complaint dated:06.09.2018, therefore, the complainant has not cited its particulars much earlier. In the complaint it also very much silent as to exactly when complainant had made request and how the complainant had mobilized the fund and exactly when on whose presence, on which security she got lent the loan is not been disclosed. Therefore, it requires to focus on the cross of PW.1.
Judgment 33 C.C.No.26561/2018
39. In the complaint she also very much silent, the accused being left her husband resides separately in a rented house along with widow mother, why she was in need of the huge amount of Rs.10 lakhs is also not been pleaded nor explained the cross of PW.1. The accused including financial capacity of the complainant, has denied the very loan transaction, therefore, it is the complainant needs to substantiate her contention and remove the doubts. The accused by way of much earlier caused notice as per Ex.D2 as cautioned the complainant not ventured for misuse of her signed blank cheque as she made threat consequent to lodged the complaint by L.P.Anthony Joseph before the Kengeri Police Station. That apart, the accused has focused on serious lacks in the pleading as well as evidence of PW.1. Even questioned the financial capacity of the complainant, therefore, it is reverse as per Section 139 of Negotiable Instruments Act is created on the complainant. The accused no need to place her probable defence in its entirety and she can placed her defence to the extent of possibilities under probable grounds. Even taken in consistence probable defence would not disentitle her to place her defence. However, by way of cause notice on 27.07.2018 as per Ex.D2 before the complainant initiate action on Ex.P1-cheque dated:01.08.2018 gave the legal notice under which Judgment 34 C.C.No.26561/2018 circumstances the questioned signed blank cheque came to the possession of the complainant, it is reverse burden on the complainant to prove her case beyond the reasonable doubt, as accused has successfully rebutted the case of complainant as discussed supra.
It is well worthy to cite the decision reported in 2008 AIR SCC 7702 (P. Venugopal V/s.Madan P. Sarathi). Wherein, it was pleased to held by the Hon'ble Division Bench of the Hon'ble Apex Court that:
"The presumption raised does not extent to the expenditure that cheque was issued for the discharge of any debt or liability. Which is required to be proved by the complainant. However, it is essentially a question of fact".
Added to that, in a decision reported in ILR 2009 KAR 1633 (Kumar Exports V/s. Sharma Carpets). Wherein, it was pleased to held by the Hon'ble Apex court that:
(D) Negotiable Instruments Act, 1881, Sections 118, 139 and 138 - Presumption under Sections 118 and 139 - How to be rebutted - Standard of proof required rebuttal - HELD, Rebuttal does not require proof beyond reasonable doubt -
Something probable has to be brought record -
Burden of proof can be shifted back to complainant by producing convincing circumstantial evidence - Thereafter the said presumption arising under Judgment 35 C.C.No.26561/2018 Section 118 and 139 case to operate - To rebut said presumption accused can also rely upon presumptions under Evidence Act, 1872 Section 114 (common course of natural even human conduct and public and private business) -
Evidence Act, 1872 - Section 114 - Presumptions of fact under".
40. From the point of above dictums also, it was the reverse burden casted upon the complainant to establish the very case beyond the reasonable doubt in order to convict the accused. As discussed earlier, in the legal notice, complaint allegations and averments including affidavit evidence, the complainant has not specified, on which date the accused has approached the complainant and made request and what compelling circumstances she was in need of Rs.10 lakhs and how she mobilized and on which proof she handed over the loan of Rs.10 lakhs is not been clarified. However, it was an opportunity to the complainant to give necessary explanation in her cross- examination. In the complaint she has stated, she is running a small provision store. In her cross-examination, the PW.1 has deposed that:
"DgÉÆæ PÀ¼ÉzÀ ªÀÄÆgÀÄ ªÀµÀðUÀ½AzÀ £ÀªÀÄä ¥Áæ«d£ï ¸ÉÆÖÃgïUÉ §AzÀÄ ºÉÆÃUÀÄwÛzÀÝjAzÀ ¥ÀjZÀAiÀÄ. DgÉÆæ LrAiÀiÁ D¦üøï Judgment 36 C.C.No.26561/2018 EnÖzÀÝgÀÄ. °Ã®ªÀÄä DgÉÆæAiÀÄ vÁ¬Ä. DPÉ ¨ÁåAPï£À°è ¸ÀéZÀÑ ªÀiÁqÀĪÀ PÉ®¸À ªÀiÁqÀÄwÛzÀÝgÀÄ. £À£ÀUÉ ¥ÀjZÀAiÀĪÁzÀ £ÀAvÀgÀ DgÉÆæ LrAiÀiÁ ¹ªÀiï ±Á¥ï£ÀÄß ElÄÖPÉÆArzÀÝgÀÄ. £Á£ÀÄ ¢éwÃAiÀÄ ¦AiÀÄĹ ªÁå¸ÀAUÀ ªÀiÁrzÉÝãÉ. £Á£ÀÄ UÀÈ»tôAiÀiÁVzÀÄÝ, £ÀªÀÄä ¥Áæ«d£ï ¸ÉÆÖÃgï£ÀÄß £ÉÆÃrPÉƼÀÄîvÉÛãÉ. £À£Àß ªÀÄ£ÉAiÀÄ°è £Á£ÀÄ, £À£Àß UÀAqÀ ªÀÄvÀÄÛ E§âgÀÄ ªÀÄPÀ̼ÀÄ ªÁ¸À«zÉÝêÉ. zÉÆqÀØ ªÀÄUÀ 8 £Éà vÀgÀUÀw, 2 £Éà ªÀÄUÀÄ FUÀ MAzÀƪÀgÉ ªÀµÀð. £À£Àß UÀAqÀ ¥Áæ«d£ï ¸ÉÆÖÃgï£ÀÄß £ÉÆÃrPÉƼÀÄîvÁÛgÉ. ¸ÀzÀj ¥Áæ«d£ï ¸ÉÆÖÃgï£ÀÄß ¨ÁrUÉ PÀlÖqÀzÀ°è £ÀqɸÀÄwÛzÉÝêÉ. £ÀªÀÄä ªÀÄ£É PÀÆqÀ CAUÀrAiÀÄ ¥ÀPÀÌzÀ°èzÀÄÝ, CzÀÄ PÀÆqÀ ªÀiÁ¹PÀ ¨ÁrUÉ gÀÆ.10,000/-. CAUÀrAiÀÄ ¨ÁrUÉ ªÀiÁ¹PÀ gÀÆ.10,000/-."
41. The PW.1 in her cross-examination has deposed, she is the house wife and she is look after the provision store. She also deposed, in her house, her husband and 2 children are residing. The elder son is studying 8th standard and another son is of one and half year old age. She stated that, her husband has run the provision store in the rented premises having monthly rent of Rs.10,000/-. The PW.1 has stated above contrary to her pleading she has deposed, she is the house wife. She may look after the provision store in the absence of her husband or together with husband and she needs to establish, how she gain income from the said business. The PW.1 in that connection has deposed that:
Judgment 37 C.C.No.26561/2018 "£À£Àß zÉÆqÀØ ªÀÄUÀ ªÉÆzÀ®Ä ºÁ¸ÀÖ¯ï£À°è ªÁ¸À ªÀiÁqÀÄwÛzÀÄÝ, DvÀ¤UÉ ªÀiÁ¹PÀ gÀÆ.1,000/- ±ÀÄ®Ì ¥ÁªÀw¸À¨ÉÃPÁVvÀÄÛ. ªÉÆzÀ®Ä «zÁå¨sÁgÀw SÁ¸ÀV ±Á¯ÉAiÀÄ°è NzÀÄwÛzÀÄÝ, F ªÀµÀð¢AzÀ DvÀ£À£ÀÄß 8 £Éà vÀgÀUÀwUÉ ¸ÀPÁðj ±Á¯ÉUÉ zÁR°¹zÉÝãÉ. £ÀªÀÄä ¸ÀA¸ÁgÀzÀ ªÀiÁ¹PÀ Rað£À §UÉÎ £À£Àß UÀAqÀ¤UÉ UÉÆvÀÄÛ. J¸ïJ¯ï« ¥Áæ«d£ï ¸ÉÆÖÃgï £ÀªÀÄä ¥Áæ«d£ï ¸ÉÆÖÃgï. D CAUÀr £ÀqɸÀÄwÛzÀÝ §UÉÎ zÁR¯É vÀAzÀÄ ºÁdgÀÄ¥Àr¸ÀĪÀ §UÉÎ £À£ÀUÉ UÉÆwÛ®è. ¸ÀzÀj CAUÀrUÉ JµÀÄÖ §AqÀªÁ¼À vÉÆqÀV¹zÉÝÃ£É JA§ §UÉÎ £À£ÀUÉ UÉÆwÛ®è. ¥Àæw ¢£À ºÁUÀÆ ªÀiÁ¹PÀ JµÀÄÖ ªÁå¥ÁgÀ DUÀÄvÀÛzÉ JAzÀÄ UÉÆwÛ®è. £À£ÀUÉ ªÀiÁ¹PÀ ¸ÀA¥ÁzÀ£É E®è. J¯Áè £À£Àß UÀAqÀ¤UÉ ¸ÀA§AzÀs¥ÀnÖzÉ. CAUÀr¬ÄAzÀ §gÀĪÀAvÀºÀ DzÁAiÀĪÀ£ÀÄß £À£Àß ªÀÄvÀÄÛ £À£Àß UÀAqÀ£À SÁvÉAiÀÄ°è PÀÆqÀ ElÄÖPÉƼÀÄîvÉÛêÉ."
42. As per her say, her elder son earlier studied in the hostel school and she needs to pay Rs.1,000/- per month and know she shifted government school. She also stated, regarding the monthly expenses of the house, she does not know, it is her husband only knew. She stated that, SLV Provision store is of there and to show that, they have been run the business, she does not know about the production of document. Even she deposed, for running that business, how much investment was made also she does not know. Even she deposed, what was the Judgment 38 C.C.No.26561/2018 daily and monthly business turnover is done, also she does not know. More categorically she deposed, she is not having any monthly income from the said business, but she stated, it is left to her husband only. She stated that, the income accrued from the shop business was kept in the account of her and her husband. By deposing so, on the one hand she admitted, she is a house wife and not having any income. On the other hand she stated, whatever the turnover made from the said business and income were kept in the account of her as well as her husband. Therefore, it is her to establish she is having sufficient balance in her bank account in order to pay the huge amount of loan of Rs.10 lakhs to the accused as alleged. Admittedly, she not having income. In order to show that, whatever the amount she kept in her bank account in the account of her husband, she needs to furnish bank passbook or statement, but for the reasons stated, she not produced before this court. As reproduced earlier, she categorically admitted, the monthly rent of shop is Rs.10,000/- and house rent is also Rs.10,000/- p.m. That apart, as on the alleged date her son was studied in residential school needs to pay Rs.1,000/- p.m. Apart from the said expenses she needs more money for maintaining their family as well as run the business, how she mobilized and whatever the income she gain from their Judgment 39 C.C.No.26561/2018 business, she saved and kept with her, she not explained satisfactorily in order to show her financial capacity. Thereby, the complainant has failed to demonstrate she is financially capable to arrange the money of Rs.10 lakhs.
43. During the course of cross of PW.1, she categorically admitted that:
"22.09.2015 gÀAzÀÄ, £À£Àß ªÀiÁf ¥Àw¬ÄAzÀ gÀÆ.4 ®PÀë £À£ÀUÉ §A¢gÀÄvÀÛzÉ. D jÃw ºÀtªÀ£ÀÄß ¹éÃPÀj¹zÀ §UÉÎ ¨ÁåAPï£À ¸ÉÖÃmïªÉÄAmï ºÁdgÀÄ ¥Àr¸À®Ä vÉÆAzÀgÉ E®è."
44. As per the said testimony of PW.1, she categorically admitted, as on 22.09.2015 from her former husband, the complainant had received Rs.4 lakhs and to show that, she had received as such, she had no impediment to producer her bank statement. Admittedly, in order to show that, she got received Rs.4 lakhs on 22.09.2015 from her former husband is not in dispute. In order to show that, thereafter, she kept the said Rs.4 lakhs with her, she needs to produce document, but she not produced any document before this court. But in her further cross-examination, she deposed that:
"DgÉÆæUÉ £À£Àß ¨ÁåAPï£À SÁvɬÄAzÀ £ÀUÀ¢ÃPÀj¹ PÉÆnÖ®è. £À£Àß ¨ÁåAPï£À SÁvɬÄAzÀ AiÀiÁªÀ AiÀiÁªÀ ¢£ÁAPÀzÀAzÀÄ ºÀtªÀ£ÀÄß Judgment 40 C.C.No.26561/2018 ¥ÀqÉ¢zÉÝ JAzÀÄ £É£À¦®è. ºÁUÉ £ÀUÀ¢ÃPÀj¹zÀ ºÀtªÀ£ÀÄß ¸Àé®à £Á£ÀÄ §¼À¹PÉÆArzÀÄÝ, G½zÀ ºÀt £À£À߯Éèà ElÄÖPÉÆArzÀÄÝ, CzÀPÉÌ E£ÀÆß ¸Àé®à ºÀtªÀ£ÀÄß ¸ÉÃj¹ DgÉÆæUÉ PÉÆnÖzÉÝ£ÀÄ. DgÉÆæUÉ gÀÆ.500/-, gÀÆ.100/-, gÀÆ.1,000/- £ÉÆÃlÄUÀ¼À£ÀÄß ¸ÉÃj¹ gÀÆ.10,00,000/- ªÀ£ÀÄß 2016 gÀ dįÉÊ wAUÀ¼À ªÉÆzÀ® ªÁgÀzÀ°è £ÀªÀÄä ªÀÄ£ÉAiÀįÉèÃ, DgÉÆæ, DPÉAiÀÄ vÁ¬Ä ªÀÄvÀÄÛ DgÉÆæAiÀÄ ¸ÉßûvÀ ZÀAzÀæ¥Àà ªÀÄzsÁåºÀß ¸ÀĪÀiÁgÀÄ 2.00 UÀAmÉAiÀÄ CªÀ¢üAiÀÄ°è £À¤ßAzÀ ¥ÀqÉzÀÄPÉÆAqÀÄ ºÉÆÃVzÀÝgÀÄ. DgÉÆæUÉ ºÀtªÀ£ÀÄß ¤ÃqÀĪÁUÀ £Á£ÀÄ ªÀÄvÀÄÛ £À£Àß UÀAqÀ ¥Àæ¨ÀsÄ.f.PÉ. ºÁUÀÆ £À£ÀUÉ ¥ÀjavÀgÁzÀ D¤ì eÉÆøɥsï PÀÆqÀ EzÀÝgÀÄ."
45. On going through the cross of PW.1, she categorically deposed, she not encashed or withdraw money from her bank account. Even she deposed, she does not remember on which date she withdraw money from her bank account. She stated, so withdrawn money from her bank, she had utilized for herself and kept the remaining amount with her and adding additional amount, she gave to the accused. From the said evidence she has not clarified what amount she had retained all along and how much she spend for herself and how much balance kept with her and how and what amount, she added like additional money is also not been satisfactorily explained. She deposes, in the 1st week of July, 2016, she gave Rs.10 lakhs in the denomination of Rs.500/-, Judgment 41 C.C.No.26561/2018 Rs.100/- and Rs.1000/- notes in her house to the accused in the presence of accused's mother and her friend Chandrappa at 2.00 p.m. Even she stated, while she gave money to the accused as such, complainant, her husband and Ancy Joseph were also present.
46. As discussed earlier, the complainant has failed to plead as to the alleged payment of loan during 1st week of July, 2016 to the accused. But in the cross-examination she described the date as such. The complainant has projected that, Chandrappa is friend of accused. Along with him, accused, her mother, husband of complainant and Ancy Joseph were present at that time. In order to secure their presence before this court to prove the transaction alleged to be happened, the complainant not ventured to call them as witness. The accused has not admitted, Chandrappa is her friend even she denies borrowing of loan. As per the say of complainant during 1st week of July, 2016, accused borrowed loan from her in the presence of said witnesses. If at all, those were present definitely, the alleged document executed by the accused should be on the same date. On going through the Ex.P9 it does not disclose the date 1st week of July, 2016, but it was dated:04.09.2015. In case those witnesses were present at the time of alleged loan transaction definitely, the complainant had no Judgment 42 C.C.No.26561/2018 impediment to secure their signatures as eye witnesses to the said transaction. The incomplete document at Ex.P9 prima facie leads to draw the inference that, it was not executed by the accused in the presence of witnesses in connection to the alleged loan. The complainant in her further cross-examination has deposed, she was not asked the accused to issue any security document, but she herself stated that, accused herself got prepared and given to her. The complainant alleged to be did money transaction of Rs.10 lakhs, expected to lent the huge amount without any secured documents is also highly impossible. No prudent man without securing any document claimed to pay the alleged loan of Rs.10 lakhs is highly unbelievable. In order to show that, other witnesses were present to the said transaction none of them were examined by the complainant, it also one of the strong circumstances to disbelieve the contention of the complainant. The PW.1 has deposed as to the printed date found in Ex.P9. She clearly admitted, the document at Ex.P9 is altogether different date from the alleged date of payment. She also deposed to the unknown person if they are in trouble she wouldn't pay any money.
47. The PW.1 has deposed, since accused and her mother were behaved with her, as sister, she gave money to the accused.
Judgment 43 C.C.No.26561/2018 But she not specified for which purpose huge amount of Rs.10 lakhs, she paid to the accused. Therefore, the evidence led by the complainant is not satisfactory as to the alleged requirement of huge amount of Rs.10,00,000/- to the accused that too she being helpless and income less women. The PW.1 has deposed, she add money, in additional to money so received from her former husband. The PW.1 has admitted that, on or after 22.09.2015, she kept the said money with her till the alleged date of payment of loan to the accused till 1st week of July, 201. In that regard, she has not produced any document. As per her own say she utilized portion of money and kept the portion of money with her. If utilized portion of money, it is her to explain what purpose she spend. If kept with remaining amount, she should disclose what extent of money she had as such. But no such explanation is forth coming.
48. That apart, she also deposed that, for the remaining amount she kept with her, she added more money and gave it to accused. Rs.10 lakhs is not a smaller amount, therefore, how she mobilized the fund of Rs.10 lakhs it is the complainant needs to explain. As per her say, she already admitted portion of money, she utilized and failed to prove that, remaining amount she kept with her. If at all, she had portion of amount, it is her to discloses, but not did so.
Judgment 44 C.C.No.26561/2018 When, complainant claiming she spent some money out of 4,00,000/-, then on which basis she pleaded, she had Rs.4 lakhs and additional amount earned from her business and added and gave it to accused. The complainant has failed to demonstrate that, out of Rs.4 lakhs amount received from her former husband and earned the income from business, she gave alleged loan to the accused is not been proved. The accused has successfully proved that, the complainant had no sufficient income source to lent huge amount. Whatever money the complainant had through her husband, it was for her purpose only. Even, she not saved any income or she not retained Rs.4 lakhs, as she pleaded or Rs.4,50,000/- as she deposed received from her former husband kept with her. When she utterly failed to demonstrate, she had the financial arrangement of Rs.10 lakhs, the question of lent to the accused does not arise. Unless, the complainant has possessed the physical money question of lent to the accused does not arise. The PW.1 has pleaded within 2 months agreed to repay, but the document at Ex.P9 as well as the PW.1 has deposed, it was undertaken to repay within 6 months. There is clear contradiction in the evidence of PW.1, which does not repose confidence.
Judgment 45 C.C.No.26561/2018
49. That apart, it was the allegation against the complainant that, the complainant has joined with Ancy Joseph, apart from Ancy Josaeph ventured into file cheque bounce case for Rs.23 lakhs against the accused, the complainant also based on the cheque obtained from the accused for the unexplained reasons, took risk to file the present case by projected the theory of lent of Rs.10 lakhs, but she utterly failed to demonstrate the same. The accused being a lady without the support of her husband or any family members, require the money of Rs.10 lakhs as alleged by the complainant is not been proved. Without ascertaining the financial capacity of the accused for repayment the complainant went on pay the alleged loan to the accused is also highly created doubt as to the claim put forth by the complainant. Even the PW.1 has deposed, either Chandrappa or accused, either one had executed Ex.P9 document in her favour. It clearly manifest that, she does not know who got executed the Ex.P9, thereby, the accused has proved that, she is not executed the same in favour of the complainant. The accused has stated prior to the transaction held 2014 for smaller amount maximum of Rs.30,000/-, the complainant used to take the signed blank cheque, despite, she got cleared the said loan before 2014 itself without returning the said blank cheque the complainant colluded Judgment 46 C.C.No.26561/2018 with Ancy Joseph filed the false case and thereby claiming she was not issued and executed the questioned cheque for discharge of liability of Rs.10 lakhs.
50. On meticulous perusal of the Ex.P1-cheque, it prima facie discloses, the signature of the accused is made in black ink, other writings and fillings are made in different hand writing and ink. The complainant has not explained, who got executed the questioned cheque. The accused is an educated lady there is no impediment to her to fill the cheque, as she is the drawer. But contrary to the same altogether different person in a different ink got filled the cheque itself creates doubt as to the genuineness of its execution and issuance. The complainant, after the accused caution the complainant by way of issue notice as per Ex.D2 before placing cheque for encashment, even then the complainant has not deligent in place her case. Pleading made by the complainant and her evidence is not corroborates each other. Thereby, the accused had made use of opportunity cross- examination of PW.1 in order to disprove the case of complainant and rebutted the statutory presumption as well as facts and circumstances raised by the complainant. Thereby, satisfactorily proved the defence that, complainant being a house wife having no financial capacity to lent huge amount of Rs.10 lakhs.
Judgment 47 C.C.No.26561/2018 At this stage this court has gone through the decision reported in Criminal Appeal No.2402 of 2014, between K.Subramani V/s K.Damodara Naidu, the Hon'ble Apex court held that:
"The Hon'ble Apex Court confirmed the Judgment of Trial Court acquitting the accused on the ground of capacity to pay the amount of cheque. In the above said ruling the Trial Court acquitted the accused on the ground that the complainant had no source of income to lend sum of Rs.14,00,000/-. In the appeal the 1st Appellate Court set aside the order and remanded the matter to the Trial Court to give an opportunity to complainant to prove the same. The accused went in appeal before the Hon'ble Apex Court and the Hon'ble Apex Court has set aside the order of the 1st Appellate Court and upheld the acquittal order passed by the Trial Court".
51. As per dictum, it is the complainant needs to prove her financial capacity, but she utterly failed to prove that, she had requisite fund of Rs.10 lakhs as on the alleged date of transaction. Unless, she possessed hard cash of Rs.10 lakhs question of lent to the accused does not arise. Whatever the document she relied at Ex.P9 it is also not supports the case of complainant and alleged transaction. The accused at the earliest by way of gave legal notice as per Ex.D2 warned the complainant not to ventured Judgment 48 C.C.No.26561/2018 for false proceedings. Despite that, complainant without cause reply prosecuted matter and utterly failed to prove her case. Therefore, mere because of the complainant possessed the questioned cheque at Ex.P1 and bares the signature; it does not mean that, it was issued by the accused for discharge of existence of legally recoverable debt. Hence, accused is entitled for acquittal.
52. On going through the proceedings, it discloses by virtue of order passed by this court on 26.06.2019 on the application filed by the complainant under Section 143(a)(b) of Negotiable Instruments Act, keeping in the mind of object of the introduction of the said production ordered the accused to pay the interim compensation of Rs.1 lakh to the complainant. Accordingly, the accused by honouring the said order got deposited an amount of Rs.1 lakh in the office on 28.06.2019. The accused has complied the said order. It is pertinent to note that, the said order was passed subject to the result of present case. By virtue of the amended provision Section 143(a) of Negotiable Instruments Act, it made clear that, subject to the result of the present case, the drawer/accused shall pay the interim compensation awarded by the court. In the event of the complainant failed to prove her case, the complainant shall refund the said amount with prevailing rate Judgment 49 C.C.No.26561/2018 of interest as on the date of she got received the money. Accordingly, in the present case it discloses, the complainant had withdrawn the money of Rs.1 lakh from the court deposit on 18.09.2019 more than 1 year the complainant has possessed the said money and made use of the same. Though, she brought present case under certain facts and circumstances, with allegations based on questioned cheque the complainant has utterly failed to prove the same. Therefore, whatever the amount she got received by virtue of the order of this court as interim compensation of Rs.1 lakh, it is complainant now shall repay or redeposit before this court along with prevailing rate of interest, when she got received on 18.09.2019.
53. On going through the verification of bank interest through the Google check it discloses, during September, 2019 the bank interest was at 12% p.a. Therefore, the complainant now she needs to repay the said amount of Rs.1 lakh together with interest at 12% p.a. from the date of she got received on 18.09.2019. After the complainant deposit the said amount with interest, the accused has every liberty to get refund as per procedure by moving necessary application. Accordingly, as discussed above, the complainant has utterly failed to prove her case beyond the reasonable doubt in order to convict the accused. On the other Judgment 50 C.C.No.26561/2018 hand, the accused has successfully proved her probable defence. In view of she able to disprove the case of complainant and rebutted the statutory presumption she is also entitled to taken back her Rs.1 lakh, which was paid by her to the complainant as interim compensation with interest at 12% p.a. If that is done, it will meet the ends of justice. Hence, as discussed above, the complainant has utterly failed to prove her case beyond the reasonable doubt.
54. On overall appreciation of the material facts available on record, it discloses that, despite the accused harping on the very claim of the complainant, she fails to demonstrate her very case. While appreciate the materials available on record, this court has humbly gone through the decision relied by both parties apart from the following decisions.
At this stage, this court relies upon the decision reported in ILR 2009 KAR 2331 (B.Indramma V/s. Sri.Eshwar). Wherein, the Hon'ble Court held that:
"Held, when the very factum of delivery of the cheque in question by the accused to the complainant and its receipt by complainant from the accused itself is seriously disputed by the accused, his admission in his evidence that, the cheque in Judgment 51 C.C.No.26561/2018 question bares his signature would not be sufficient proof of the fact that, he delivered the said cheque to the complainant and the latter received if from the former".
55. The principle of law laid down in the above decision is applicable to the facts of this case. Merely because, the accused admits that, cheque bares her signature, that, does not mean that, the accused issued cheque in discharge of a legally payable debt.
At this stage, this court also relies upon another decision reported in AIR 2007 NOC 2612 A.P. (G.Veeresham V/s. Shivashankar and another). Wherein, the Hon'ble Court has held as under:
"Negotiable Instruments Act (26 of 1881). S. 138 Dishonour of cheque - Presumptions available to complainant under S. 118 and S. 139 of Act - Rebuttal of cheque in question was allegedly issued by accused to discharge hand loan taken from complainant. However, no material placed on record by complainant to prove alleged lending of hand loan said fact is sufficient to infer that, accused is liable to rebut presumptions available in favour of complainant under Sections 118 and 139 of Act, Order acquitting accused for offence under S. 138 proper".
Judgment 52 C.C.No.26561/2018
56. The principle of law laid down in the above decisions is applicable to the facts of this case. In the case on hand also, as discussed above, the complainant has failed to prove with cogent evidence as to the lending of loan of Rs.10 lakhs to the accused. Thus, that fact itself is sufficient to infer that, accused is able to rebut presumptions available in favour of complainant under Sections 118 and 139 of the Negotiable Instruments Act.
57. In this case on hand also, on the lack of the complaint failed to prove the alleged loan transaction, it can gather the probability that, accused is not liable to pay Ex.P1 cheque amount of Rs.10 lakhs and it is not legally recoverable debt. So, the burden is on the complainant to prove strictly with cogent and believable evidence that, the accused has borrowed the cheque amount and she is legally liable to pay the same. Just because, there is a presumption under Section 139 of Negotiable Instruments Act, that, will not create any special right to the complainant so as to initiate a proceeding against the drawer of the cheque, who is not at all liable to pay the cheque amount. The accused has taken her defence at the earliest point of time, while record accusation and statement under Section 313 of Cr.P.C. by way of denial. The evidence placed on record clearly probablize that, complainant has failed to prove that, accused issued the cheque for discharge Judgment 53 C.C.No.26561/2018 of liability of Rs.10 lakhs. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
58. From the above elaborate discussions, it very much clear that, the complainant has failed to adduce cogent and corroborative evidence to show that, accused has issued cheque at Ex.P1 in discharge of her legally payable debt for valid consideration. Hence, rebutted the legal presumptions under Sections 139 and 118 of Negotiable Instruments Act in favour of the accused.
59. The sum and substances of principles laid down in the rulings referred above are that, once it is proved that, cheque pertaining to the account of the accused is dishonoured and the requirements envisaged under Section 138 of (a) to (c) of Negotiable Instruments Act is complied, then it has to be presumed that, cheque in question was issued in discharge of legally recoverable debt. The presumption envisaged under Section 138 of Negotiable Instruments Act is mandatory presumption and it has to be raised in every cheque bounce cases. Now, it is settled principles that, to rebut the presumption, Judgment 54 C.C.No.26561/2018 accused has to set up a probable defence and he need not prove the defence beyond reasonable doubt.
60. Thus, on appreciation of evidence on record, I hold that, the complainant has failed to prove the case by rebutting the presumption envisaged under Sections 118 and 139 of Negotiable Instruments Act. The complainant has failed to discharge the initial burden to prove her contention as alleged in the complaint. Hence, the complainant has not produced needed evidence to prove that, amount of Rs.10 lakhs legally recoverable debt. Therefore, since the complainant has failed to discharge the reverse burden, question of appreciating other things and weakness of the accused is not a ground to accept the claim of the complainant in its entirety without the support of the substantial documentary evidence pertaining to the said transaction. The complainant fails to prove her case beyond all reasonable doubt. As discussed above, the complainant has utterly failed to prove the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act. Accordingly, I answered the Point Nos.1 and 2 are Negative.
61. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
Judgment 55 C.C.No.26561/2018 ORDER Acting under Section 255(1) of Cr.P.C.
the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
Further, the complainant shall repay the interim compensation amount of Rs.1,00,000/-
received from the accused as per the conditional order dated:19.03.2019 of this court together with interest at 12% p.a. from the date of she got received the money on 18.09.2019 till its realization.
The bail bond and cash security/surety bond of the accused stands cancelled.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 7th day of October - 2020) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Ashwini List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque Ex.P1(a) : Signature of accused Ex.P2 : Bank endorsement Judgment 56 C.C.No.26561/2018 Ex.P3 : Office copy of legal notice Ex.P4 : Postal receipt Ex.P5 : Postal Acknowledgment card Ex.P6 : Copy of notice dated:09.08.2018 Ex.P7 : Postal receipt Ex.P8 : Postal Acknowledgment Card Ex.P9 : Loan agreement Ex.P9(a) & (b) : Signatures of complainant and accused Ex.P10 : CC of order sheet in M.C.No.3723/10 Ex.P11 : CC of memorandum of settlement Ex.P12 : CC of decree in M.C.No.3723/10 Ex.P13 : Private complaint Ex.P13(a) : Signature of complainant
List of Witnesses examined on behalf of the defence:
- None -
List of Exhibits marked on behalf of defence:
Ex.D1 : Postal Acknowledgment Card
Ex.D1(a) : Signature of complainant
Ex.D2 : Complaint dtd:27.07.2018
Ex.D3 : Postal receipt
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 57 C.C.No.26561/2018
07.10.2020.
Comp -
Accd -
For Judgment
Case called out.
Complainant and accused are absent.
No representation from both side advocates, despite, web-host the case proceedings and intimate the date of pronouncement of judgment. Hence, as per Section 353(6) of Cr.P.C. the following judgment is pronounced in the open court vide separate order.
***** ORDER Acting under Section 255(1) of Cr.P.C.
the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
Further, the complainant shall repay the interim compensation amount of Rs.1,00,000/-
received from the accused as per the conditional order dated:19.03.2019 of this court together with interest at 12% p.a. from the date of she got received the money on 18.09.2019 till its realization.
The bail bond and cash security/surety bond of the accused stands cancelled.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.