Bangalore District Court
Lakshmi.B vs Srinidhi Motors on 29 November, 2024
1
SCCH-2 C.C.No.13771/2022
KABC020356392022
IN THE COURT OF THE VI ADDL. JUDGE, COURT OF
SMALL CAUSES AND ADDL. CHIEF JUDICIAL
MAGISTRATE, BENGALURU CITY (SCCH-2).
C.C.NO.13771/2022
Present : Sri. H.P. Mohan Kumar, B.Sc.,LL.B.,
6th Addl. Judge, Court of Small
Causes and ACJM, Bengaluru.
Dated: On this the 29th day of November, 2024.
Complainant : Lakshmi.B,
D/o Bhaskar P,
Aged about 37 years,
R/at 40/1, 2nd Cross,
Basavasamathi Layout,
Vidyaranyapura Post,
Bengaluru-560 097
(By Sri.Jayanth Ranganna., Advocate)
- Vs -
Accused : Srinidhi Motors
Presently "Bangalore Wheels"
No.167/12, 12th Cross,
Mahalakshmi Layout,
(Opp. Veer Anjenya Temple)
2
SCCH-2 C.C.No.13771/2022
Bangalore-560022.
Rep: By its partner Nalina
W/o Manjunath.V
Also Residing at,
C/o Praveen Kumar,
No.59, 3rd Cross,
J.C.Nagar, 3rd Stage,
4th Block, Basaveshwaranagar,
Near Post Office,
Bangalore-560 079
(By Sri.D.L.Somesh, Advocate)
:: J U D G M E N T ::
The complainant has filed the present complaint U/Sec.200 of Cr.P.C., alleging that the accused has committed the offence punishable U/Sec.138 of Negotiable Instruments Act (herein after referred as N.I.Act).
2. The case of the complainant in brief is as follows:-
The accused approached the complainant during the month of November-2017 and sought for financial assistance of Rs.14,00,000/- and promised to repay the same within six months.
Further, the complainant lent a sum of Rs.14,00,000/- to the accused by way of cash and also through Bank transfers.3
SCCH-2 C.C.No.13771/2022 The complainant also accumulated the amount from her friends.
Further, the complainant lent Rs.4,00,000/- by way of cash on 1st November 2017 while opening the showroom. The complainant transferred Rs.47,500/- through Bank transfer, Rs.2,500/- by way of cash and Rs.50,000/- transferred from the account of her friend Shylaja in the month of February- 2019.
Further, Rs.97,000/- transferred through the account of Shylaja and Rs.3,000/- by way of cash during the month of September-2019. During the month of January-2020, the complainant transferred Rs.3,54,500/- through her account and Rs.45,500/- paid in cash.
Further, during the month of February-2020, the complainant borrowed Rs.1,50,000/- from her friend namely Vinod and lent the same to the accused. Further, the complainant on 05.08.2020 pledged her gold for Rs.2,44,000/- and also lent Rs.6,000/- in cash to the accused. In total the accused borrowed a sum of Rs.14,00,000/- from the complainant. Further, the accused to discharge her liability, on 15.02.2022 she has issued the cheque bearing No.022315 dated:17.02.2022 for Rs.14,00,000/- drawn on SBI Bank, Nandini Layout Branch, Bengaluru.4
SCCH-2 C.C.No.13771/2022
Further, as per the assurance of accused, the
complainant has presented the said cheque for encashment through her banker namely Bank of India, Sahakaranagara Branch, Bengaluru. However, the said cheque returned with shara as "Account Closed" as per memo dated:18.02.2022.
Further, the complainant has issued a legal notice dated:17.02.2022 to the accused. The said notice was served on the accused, However, she has issued untenable reply notice dated 28.03.2022. Hence, cause of action arose to file the complaint.
3. The cognizance was taken for the offence punishable U/Sec.138 of N.I.Act. After filing of the complaint, the sworn statement of the complainant was recorded and it prima-facie found that the accused has committed the offence punishable U/Sec.138 of N.I.Act. Hence, criminal case was registered and the summons was issued to the accused.
4. In response to the summons, the accused appeared through her counsel and thereafter plea was recorded. The accused denied the accusation leveled against her, claimed to be tried and stated that she has defence to make. In the instant case, the statement of the accused as contemplated U/Sec.313 of Cr.P.C., was recorded. The accused denied the 5 SCCH-2 C.C.No.13771/2022 incriminating evidence appeared against her in the evidence of complainant and submitted that she has defence evidence.
5. The Hon'ble Apex Court of India in Indian Bank Association and Others vs Union Bank of India and Another reported in AIR 2014 SC 2528, held that "Sworn Statement of the complainant has to be treated as examination in chief". In instant case, the complainant got examined himself as P.W.1 and produced as many as 9 documents which have marked as Ex.P.1 to Ex.P.7, Ex.P.2(a) and Ex.P.2(b). It is relevant to note that, Ex.P.8 to Ex.P.10 are marked through DW-1 by way of confrontation. Per contra the accused examined herself as DW-1 and marked 2 documents as Ex.D.1 and Ex.D.2.
6. Heard the arguments from both side. Perused the materials available on record.
7. Now the points that emerge for consideration of this Court are as hereunder:
1. Whether the complainant has proved that the accused has committed the offence punishable U/Sec.138 of N.I.Act?
2. What Order?6
SCCH-2 C.C.No.13771/2022
8. The findings of this Court to the above-referred points are as follows:
Point No.1: In the Negative
Point No.2: As per final order,
for the following:-
REASONS
9. POINT No.1: In order to prove the case of the complainant, she has examined herself as P.W.1 by filing affidavit in support of her oral examination-in-chief. In the affidavit P.W.1 has reiterated the complaint averments in verbatim. Hence, this Court need not to recapitulate the same once again at this juncture. In support of her oral testimony, P.W.1 has marked 9 documents as Ex.P.1 to Ex.P.7 and Ex.P.2(a), Ex.P.2(b). It is relevant to note that, Ex.P.8 to Ex.P.10 were marked through DW-1 by way of confrontation.
Per-contra the accused examined herself as D.W.1 and she has marked Ex.D.1 and Ex.D.2.
10. Now itself it is appropriate to see the documents marked as Ex.P-Series and Ex.D-Series.
Ex.P-Series.
Ex.P.1 is the cheque in question. Ex.P.1(a) is the signature of accused. Ex.P.2 is the office copy of the legal notice dated:17.03.2022. Ex.P.2(a) and Ex.P.2(b) are the RPAD 7 SCCH-2 C.C.No.13771/2022 receipts. Ex.P.3 and Ex.P.4 are the Acknowledgment Due Cards. Ex.P.5 is the Reply notice dated 18.02.2022. Ex.P.6 is the bank endorsement dated 18.02.2022. Ex.P.7 is the Certificate Under Section 65 B of Evidence Act. Ex.P.8 to Ex.P.10 are the Photographs.
Ex.D-Series.
Ex.D.1 is the Bank Statement pertaining to accused. Ex.D.2 is the Certificate filed Under Section 65 B of Evidence Act.
11. Before going to discuss the main aspect, it is worth to reproduce the provisions of Sec.138 and 139 of N.I.Act, the same as hereunder:
138. Dishonour of cheque for insufficiency, etc., of funds in the account: -
Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money 8 SCCH-2 C.C.No.13771/2022 standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for (a term which may be extended to two years), or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless-
(a) the cheque has been presented to the bank within a period of Six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (The period of 6 months has been reduced to 3 months, vide R.B.I. notification No.RBI/2011-12/251,DBOD.AML BC No.47/14.01.001/2011-12, dated:4th November 2011 (w.e.f. 01.04.2012))
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money 9 SCCH-2 C.C.No.13771/2022 by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation: - For the purposes of the section, "debt or other liability" means a legally enforceable debt or other liability.
139. Presumption in favour of holder:- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.
12. At this juncture, it is worth to refer the decision of the Hon'ble Apex Court reported in AIR 2010 S.C. 1898, between Rangappa V/s Mohan wherein their lordships have observed at para 26 as hereunder:
10SCCH-2 C.C.No.13771/2022 "No doubt that there is a initial presumption which favours the complainant".
13. It is germane to note that the proceedings U/Sec.138 of N.I. Act is an exception to the general principle that the accused is presumed to be innocent until the charge leveled against him is proved beyond reasonable doubt. In the proceedings initiated U/Sec.138 of the N.I. Act proof of beyond reasonable doubt is subject to the presumption envisaged under Sec.139 of the N.I. Act. Once the requirement of Sec.138 of the N.I. Act is fulfilled, then it has to be presumed that the cheque was issued in discharge of legally recoverable debt or liability. The presumption envisaged under Sec.139 of N.I. Act is mandatory presumption and it has to be raised in every cheque bounce cases.
14. At the cost of repetition, it is settled position of law that, the initial presumption which favours the complainant. As per Sec. 118 of Negotiable Instruments Act, it is crystal clear that, it shall be presumed that every Negotiable Instrument was made or drawn for consideration. Likewise, as per sec.139 of Negotiable Instruments Act, it is crystal clear that, unless the contrary is proved it shall be presumed that, the holder of the cheque received the cheque of the 11 SCCH-2 C.C.No.13771/2022 nature referred in Sec.138 of N.I. Act for the discharge, in whole or in part, of any debt or other liability.
15. Now, it is worth to refer the decision of the Hon'ble Apex Court between Hiten P Dalal V/s Brathindranath Manarji reported in 2001(6) SCC 16, wherein the Hon'ble Apex Court observed that, "under Sec.138 of Negotiable Instruments Act, the complainant is not required to establish either the legality or enforceability of the debt or liability since he can avail the benefit of presumption U/Sec.118 and Sec.139 of N.I. Act in his favour".
16. It is also settled position of law that, the presumption available U/Sec. 138 of N.I Act is a rebuttable presumption. Further, to rebut the said presumption the accused need not to enter into the witness box. However, the accused can establish his probable defence by creating a doubt about the existence of legally enforceable debt or liability.
17. Further, it is also settled position of law that, the standard of proof of rebutting the presumption is that of preponderance of probabilities. It is also settled position of law that, if the accused succeeded in rebutting the presumption then the burden shifts back to the complainant. At this juncture, again it is worth to refer the decision of the Hon'ble Apex Court reported in AIR 2010 S.C. 1898, 12 SCCH-2 C.C.No.13771/2022 between Rangappa Vs. Sri. Mohan, wherein the Hon'ble Apex Court has observed that, "the standard of proof to rebut the presumption is that one of preponderance of probabilities".
18. It is also settled position of law that, "it is immaterial that, the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque otherwise valid, within the provisions of Sec.138 would be attracted".
19. Now, the important question before this Court is whether the complainant has complied the ingredients of Sec.138 of N.I. Act or not?. In order to answer this aspect, Ex.P.1 to Ex.P.6 and Ex.P.2(a), Ex.P.2(b) are relevant. Ex.P.1 is the cheque in question and it bears the date as 17.02.2022. Ex.P.6 is the endorsement dated:18.02.2022. On perusal of this document, it appears to this Court that, the cheque in question was got bounced on 18.02.2022. As such it is manifest that cheque has been presented for encashment within the stipulated period. Thereafter, as per Ex.P.2, the complainant has issued the legal notice on 17.03.2022. Likewise, the said notice was posted on 17.03.2022 itself as per Ex.P.2(a) and Ex.P.2(b). Apart from that the said notice was duly served on the accused as per Ex.P.3 and Ex.P.4. It is pivotal to note that, as per Ex.P.5, the 13 SCCH-2 C.C.No.13771/2022 accused has issued the reply notice. Therefore, it is crystal clear that the complainant has presented the cheque for encashment within the stipulated period. Likewise, within the stipulated period the complainant has issued the legal notice and the same has been duly served on the accused.
20. It is relevant to note that, as per Ex.P.6, the bank has issued the endorsement as "Account Closed". As such whether the endorsement "Account Closed" attracts the offence punishable under section 138 of N.I.Act or not?. In this regard, it is appropriate to rely on the decision of the Hon'ble Apex Court reported in 2012(13) SCC 375 between Laxmi Dyechem V/s State of Gujarath, wherein the Hon'ble Apex Court held at para 16 as hereunder: " the expression 'amount of money...... is insufficient' appearing in Sec.138 of the Act is a genus and dishonour for reasons such as "Account Closed", "Payment stopped", "referred to the drawer", are only species of that genus". Therefore, with the help of the above referred decision of the Hon'ble Apex Court it is crystal clear that, if the endorsement issued by the bank as "Account Closed"
also attracts an offence punishable under section 138 of N.I Act. It is relevant to note that the accused has not denied her signature in Ex.P.1. Likewise she also not denied the issuance of cheque. It is relevant to note that, the 14 SCCH-2 C.C.No.13771/2022 presumption under Sec.118 and 139 of Negotiable Instruments Act favours the complainant. Therefore, it is of the considered opinion of this Court that, the complainant has complied the ingredients of Sec.138 of N.I.Act.
21. Now question before this court is whether the accused has rebutted the presumption or not? According to the complainant, the accused has received Rs.14,00,000/- from her on various occasions through cash as well as through bank transfers. In order to discharge her liability, the accused has issued the cheque in question. When the same was presented for encashment, the same got bounced as "Account Closed". Already this court has observed that the endorsement like account closed also attracts an offence punishable U/Sec 138 of NI Act. Hence, this court need not take that aspect for discussion once again.
22. In the instant case, the accused examined herself as DW-1. Apart from that the accused has issued the reply notice as per Ex.P.5. On going through the reply notice, the accused has taken a contention that she had availed a loan of Rs.3,56,100/- during the year 2019-20 on various dates through account transfer. At which point of time the complainant forceably taken three blank signed cheques. The accused repaid the said amount on various dates through account as well as in cash. Though the entire loan 15 SCCH-2 C.C.No.13771/2022 was received by the complainant she has not returned the cheques. Further, on perusal of entire cross examination of PW-1, it can be inferred that the accused has denied the financial transaction with respect to Rs.14,00,000/-. However, she has admitted part of the transaction. Further, she has admitted the issuance of cheque towards security. The accused denied the lending of Rs.14,00,000/-.
23. Learned counsel for complainant vehemently argued that at the time of issuing notice, they have stated that the accused has borrowed a sum of Rs.14,00,000/-. However they could not averred elaborately. Hence, in the complaint they have averred elaborately regarding how the complainant lent Rs.14,00,000/- to the accused. The accused has not disputed the issuance of cheque and signature. Likewise, the accused has not taken any legal action against the complainant to get back her cheques. Even the accused has not given stop payment instructions to her banker. That apart during the course of cross examination of DW-1, she has clearly admitted the same. Once the cheque and signature is admitted, the presumption Under section 118 and 139 comes into picture and the said presumptions favours the complainant. Hence, prayed to convict the accused. In support of his line of arguments, learned counsel for complainant relied on the following decisions:
16SCCH-2 C.C.No.13771/2022
1. Crl.R.Petition No.834/2023 Clubbed with Crl.R.Petition 1121/2023 between V.Arun Kumar Versus Vinod Krishnamurthy.
2. Crl.Appeal No.1020/2010 between Rangappa Vs. Sri Mohan.
3. Crl.Petition No.256/2022 between Sudhakar Reddy Vs. Pushpa.
4. Crl.Appeal No.12802/2022 between Rajesh Jain Vs. Ajay Singh.
5. Crl.Appeal No.556/2016 between Sathyaveer Singh Vs. Suraj
24. On the other hand learned counsel for accused vehemently argued that the complainant has no financial capacity to lend Rs.14,00,000/-. The accused has issued tenable reply notice. There is no consistency in the averments of notice and pleadings of complainant. Though the complainant pleaded regarding complaint as averred regarding certain amount has been transferred through the account of Shylaja, the complainant has not made any endeavour to examine the said Shylaja. Likewise, the complainant has not made single attempt to examine her alleged friend Vinod. Apart from that the accused has denied the financial capacity of complainant to lend Rs.14,00,000/-. In fact Rs.14,00,000/- is a huge amount. When there is a 17 SCCH-2 C.C.No.13771/2022 dispute with regard to financial transaction with respect to Rs.14,00,000/-, it is the bounden duty of complainant to examine her friends namely Shylaja and Vinod.
25. Learned counsel also pointed out that the accused has been residing in her own house. However, the complainant has been residing in a rented house. Such being the case, the alleged financial transaction with respect to Rs.14,00,000/- is unbelievable. Learned counsel also pointed out that either in the notice or in the complainant, the complainant did not whisper the name of Shobika. However, during the course of cross examination of PW-1, she has deposed that she was present when Shobika was withdrawing the money. Further, she has deposed that she also accompanied her.
26. Further, as per Ex.D.1, the accused repaid the amount to the complainant. The learned counsel for complainant has not property challenged the Ex.D.1. Ex.D.1 clearly falsify the case of the complainant. With the help of Ex.D.1 and also with the help of inconsistencies from the side of complainant, the accused has raised probable doubt and also successfully rebutted the presumption. With these arguments learned counsel for accused prayed to acquit the accused.
18SCCH-2 C.C.No.13771/2022
27. In support of his line of arguments, learned counsel for accused relied on the following decisions:
1. AIR 2023 SC 471 between Rajaram Sriramulu Naidu (Since deceased) through Lrs Vs. Maruthachalam (Since deceased) through Lrs.
2. Criminal Appeal No.3257/2024 between Sri Dattatraya Vs. Sharanappa.
I have carefully gone through the decisions relied from both side and applied the principles to the case on hand.
28. With these backdrop, this court has analyzed the case on hand. In the instant case, the accused has admitted the partial transaction by and between the complainant and accused. However, the accused has disputed the transaction with respect to Rs.14,00,000/- and also disputed the financial capacity of complainant with respect to Rs.14,00,000/-. It is interesting to note that the complainant herself has pleaded that she has lent money of Rs.14,00,000/- to the accused by way of cash and bank transfers from complainant's account, her friends account. During the course of cross examination of PW-1, learned counsel for accused denied the financial transaction. It is needless to mention that the complainant has pleaded that she has accumulated the amount from her friends namely Shylaja and Vinod. However, the complainant has not made 19 SCCH-2 C.C.No.13771/2022 any single attempt to examine Shylaja and Vinod to substantiate her case. Likewise the complainant has not produced her bank statement. The production of her bank statement and also examination of her friends are necessary for this case. Non examination of Shylaja and Vinod and also non production of bank statement of complainant is fatal to the case of complainant. Further, the said aspect creates doubt in the mind of court regarding actual transaction by and between the complainant and accused.
29. Apart from the above referred aspect, the accused has produced her Bank statement, the same has been marked as Ex.D.1. On careful perusal of Ex.D.1, it appears to this court that on various dates from 30.05.2019 to 02.05.2021, the accused has transferred Rs.4,43,300/- on various dates from her account to the account of complainant. Let this court simplify the same. On 30.05.2019, Rs.6,800/- transferred to the account of complainant. Likewise on 18.07.2019, Rs.10,000/-, on 18.08.2019, Rs.10,000/-, on 21.09.2019, Rs.10,000/-, on 16.10.2019, Rs.10,000/-, on 04.11.2019, Rs.3,000/-, on 14.11.2019, Rs.15,000/-, on 25.11.2019, Rs.10,000/-, on 28.11.2019, Rs.5,000/-, on 05.12.2019, Rs.3,000/-, on 25.12.2019, Rs.10,000/-, on 05.01.2020, Rs.3,000/-, on 20.01.2020, Rs.90,000/-, on 22.01.2020, Rs.1,74,500/-, on 20 SCCH-2 C.C.No.13771/2022 05.02.2020, Rs.3,000/-, on 01.03.2020, Rs.10,000/-, on 05.03.2020, Rs.3,000/-, on 12.03.2020, Rs.2,000/-, on 23.03.2020, Rs.10,000/-, on 09.04.2020, Rs.3,000/-, on 04.06.2020, Rs.5,000/-, on 23.07.2020, Rs.10,000/-, on 31.12.2020, Rs.10,000/-, on 29.03.2021, Rs.4,000, on 02.05.2021, Rs.5,000/-.
30. A scrupulous perusal of Ex.D.1, it is crystal clear that Rs.4,43,300/- has been transferred to the account of complainant. However, she has not whispered the same either in the notice or in the complaint. Why she has not stated that same in notice as well as in complaint is not forthcoming. Therefore, it is crystal clear that the complainant has suppressed the material facts. The said aspect also creates a plausible doubt about the alleged transaction. The suppression of amount transferred from the account of accused to the account of complainant from 30.05.2019 to 02.05.2021 is fatal to the case of complainant.
31. Apart from the above referred aspects, at the cost of repetition, the accused denied the financial transaction with respect to Rs.14,00,000/- and also denied the accumulation of Rs.14,00,000/-. Such being the case it is the primary duty of complainant to prove the accumulation of Rs.14,00,000/-. However, in the instant case the complainant has not examined her friends namely Shylaja and Vinod. Likewise, 21 SCCH-2 C.C.No.13771/2022 though the complainant received Rs.4,43,300/- from the accused she has deliberately suppressed the same. Apart from that during the course of cross examination of DW-1, the complainant side has failed to elicit from the mouth of DW-1 with regard to the amount transferred from the account of accused to the account of complainant. However the learned counsel for complainant would submit that the accused transferred the said amount towards kitty party. As per Ex.D.1, Rs.4,43,300/- has been transferred on various dates. Normally, it cannot be believed that the amount of Rs.4,43,300/- has been transferred towards kitty party. Therefore, the arguments canvassed by the learned counsel for complainant failed to inspire the confidence of this court.
32. At the cost of repetition, the accused has disputed the financial capacity of the complainant. It is needless to mention that, during the course of cross-examination of P.W.1, the accused has disputed the financial capacity of the accused. At this juncture it is worth to reproduce the same ಆರೋಪಿಗೆ ಹದಿನಾಲ್ಕು ಲಕ್ಷ ಹಣವನ್ನು ಕೊಡಲು ನಿಮಗೆ ಆರ್ಥಿಕ ಸಾಮರ್ಥ್ಯ ಇರಲಿಲ್ಲ ಎಂದರೆ ಸರಿಯಲ್ಲ. Therefore, it is crystal clear that the accused has disputed the financial capacity of complainant with respect to lending of Rs.14,00,000/-. As per the complainant version, she has obtained Rs.1,50,000/- from Vinod and Rs.1,50,000/- transferred through the account of Shylaja and 22 SCCH-2 C.C.No.13771/2022 also accumulated amount of Rs.2,44,000/- by pledging her gold ornaments on 05.08.2020. However, to prove the financial capacity of the complainant, the complainant neither examined her friends nor she produced her bank statement. Further, she has not produced the documents to show she has accumulated Rs.2,44,000/- by pledging her gold. It is not forthcoming from the side of complainant regarding why she has not examined the said Shylaja and Vinod. Even the complainant has not made single attempt to examine the said persons and also produce bank statement and the documents to show she has pledged the gold.
33. Apart from the above referred lacuna, the complainant has not produced her bank statement regarding she had handsome earnings. In the present set of facts it appears to this court that, the non examination of Shylaja and Vinod is certainly fatal to the complainant's case. Moreover, the complainant has not satisfactorily explained what was the necessity to lend Rs.14,00,000/- by borrowing Rs.1,50,000/- from Vinod, Rs.1,50,000/- from Shylaja and also by pledging her gold for Rs.2,44,000/-. Moreover, during the course of cross-examination, the complainant herself has deposed that, she has been residing in a rented house. The above referred aspects creates a serious doubt in the mind of 23 SCCH-2 C.C.No.13771/2022 the Court with regard to the financial capacity of the complainant to lend Rs.14,00,000/- to the accused.
34. Further, it is also not forthcoming from the side of complainant, whether she had cleared the loans availed from Shylaja and Vinod. Likewise, she has not produced documents to show she had cleared the gold loan. It is true that if the accused admits the signature and cheque, statutory presumption favours the complainant. In the instant case the accused has not disputed the cheque and her signature. However there are clear contradictions in the complainant's case and also in the evidence of PW-1. Further, there are no documents to substantiate the accumulation of amount.
35. At the cost of repetition, the failure to examine the friends of complainant is fatal to case of complainant. It is relevant to note that, if the accused has denied the financial capacity of the accused. Then, it is the bounden duty of the complainant to produce the documents to substantiate her financial capacity. It is crystal clear that when once the accused has disputed the financial capacity of the complainant, it is on the part of complainant to prove the financial capacity to the extent of the amount paid to the accused. In this connection, it is appropriate to rely on the 24 SCCH-2 C.C.No.13771/2022 decision of the Hon'ble High Court of Karnataka reported in 2012 (3) KCCR 2057, it is held that, "No proof as to other source of income from land, no evidence that he had a bank balance of Rs.2,00,000/- on the day he has alleged to have advanced the loan. Mere issuance of cheque is no sufficient unless it is shown that cheque was issued towards discharge of a legally recoverable debt. When the financial capacity of the complaint is questioned, the complainant has to establish his financial capacity".
36. Apart from that the Hon'ble Apex Court observed in Crl.Appeal No.3257/2024 between Dattatreya Vs. Sharanappa that "where the financial capacity of the creditor is raised on behalf of the accused, the same is to be discharged by the complainant through leading cogent evidence". In the instant case also, the accused has disputed the financial capacity to lent Rs.14,00,000/-. However, the complainant has not proved her financial capacity to lend Rs.14,00,000/-.
25SCCH-2 C.C.No.13771/2022
37. Therefore, from the available materials on record, it is crystal clear that, the complainant has received the blank cheque from the accused. Further, based on the materials available on the record it can also be inferred that, the complainant in order to make wrongful gain, she has entered higher amount in the cheque. The evidence also reveals that, there was no existence of legally enforceable debt for the amount mentioned in the cheque. It is manifest that the accused has raised the probable doubt regarding the advancement of 14,00,000/- to the accused. Therefore, this court holds that, the accused has raised plausible defence and successfully rebutted the presumption available in favour the complainant in this case. It is pertinent to note that, once the accused has rebutted the presumption, the burden shifts back to the complainant. However, the complainant has failed to prove his case. Hence, this court holds that, the complainant has failed to prove that, the accused has committed an offence punishable Under Sec. 138 of Negotiable Instruments Act. Accordingly, this Court is answered Point No.1 in the Negative.
38. Point No 2 : In view of the above findings, this Court proceeds to pass following:
26SCCH-2 C.C.No.13771/2022
:O R D E R:
Acting U/Sec.255(1) Cr.P.C., the accused is acquitted of the offence punishable under Section 138 of Negotiable Instruments Act, 1881.
The bail bond of the accused and her surety shall stands cancelled.
(Dictated to Stenographer directly on computer and typed by her, revised and corrected by me, and then pronounced in the open Court on this the 29 th November, 2024) (H.P. Mohan Kumar) VI Addl. Judge and ACJM., Court of Small Causes, Bengaluru.
:ANNEXURE:
LIST OF WITNESSES EXAMINED BY THE COMPLAINANT:
P.W.1 : Smt.Lakshmi.B. LIST OF DOCUMENTS MARKED ON BEHALF OF COMPLAINANT:
Ex.P.1 : Original Cheque No.022315, dated:17.02.2022.
Ex.P.1(a) : Signature of accused. 27 SCCH-2 C.C.No.13771/2022 Ex.P.2 : Office copy of legal notice dated:17.03.2022. Ex.P.2(a) & : RPAD receipts. Ex.P.2(b) Ex.P.3 & : Acknowledgment due cards. Ex.P.4 Ex.P.5 : Reply Notice dated: 28.03.2022 Ex.P.6 : Bank endorsement dated:18.02.2022. Ex.P.7 : Certificate Under Section 65 B of Evidence Act. Ex.P.8 to : Three Photographs Ex.P.10
LIST OF WITNESSES EXAMINED BY THE ACCUSED:
D.W.1 : Smt.Nalina.
LIST OF DOCUMENTS MARKED ON BEHALF OF ACCUSED:
Ex.D.1 : Axis Bank Statement. Ex.D.2 : Certificate Under Section 65 B of Evidence Act. Digitally signed by H P HP MOHANKUMAR MOHANKUMAR Date: 2024.12.02 12:31:43 +0530 (H.P. Mohan Kumar) VI Addl. Judge and ACJM., Court of Small Causes, Bengaluru.