Bangalore District Court
Yashoda.K.M vs K.Poornima on 14 July, 2020
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 14th day of July - 2020
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.2929/2018
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Yashoda.K.M,
W/o.Nagesh.K.B,
Aged about 36 years,
R/at No.106, 7th Main,
8th Cross, Hampinagar,
RPC Layout,
Bengaluru-40.
(Rep. by Sri.Devaraju.R, Adv.)
V/S
Accused : K.Poornima,
W/o.Prakash.S.M,
Aged about 35 years,
R/at. No.2514/O, 7th Main Road,
RPC Layout, Vijayanagar 2nd Stage,
Bengaluru-40.
Also doing business at
No.24, Railway Parallel Road,
Pipe Line, RPC Layout,
Hampinagar, Vijayanagar,
Bengaluru-40.
(Rep.by Sri.B.L.Jayarama, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
Judgment 2 C.C.No.2929/2018
FINAL ORDER : Accused is Acquitted.
DATE OF ORDER : 14.07.2020.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
JUDGMENT
The complainant has presented the instant complaint against the accused on 10.01.2018 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheque of Rs.9 lakhs.
2. In precise, the facts of the complainant case is:
The accused had approached the complainant and expressed her financial difficulties that, for constructing a residential building, she sought for hand loan of Rs.9 lakhs during 2nd week of September, 2016 and promised to repay the same within 12 months. Since, the complainant had acquaintance with the accused, the complainant lent sum of Rs.9 lakhs on 28.09.2016. In consideration of the same, accused has executed cash/consideration receipt dated:28.09.2016.
The complainant has further contended that, though the accused has assured to repay the hand loan within a period of 12 Judgment 3 C.C.No.2929/2018 months, she failed to do so. After the persistent demand made by complainant to repay the said loan amount, then accused for discharge of her liability got issued cheque bearing No.327154 dated:20.11.2017 drawn on Corporation Bank, RPC Layout Branch, Bengaluru, in favour of complainant for sum of Rs.9 lakhs.
The complainant has further averred that, she presented the said cheque for encashment with her banker viz., State Bank of India, Vijayanagar Branch, Bengaluru on 28.11.2017. The said cheque came to be dishonoured for the reasons "Funds Insufficient". Thereafter, the complainant got issued legal notice through her counsel on 12.12.2017 by way of R.P.A.D and the same got returned with shara dated:23.12.2017 stating 'Unclaimed/returned to sender'. Though, the accused got issued the questioned cheque for discharge of her liability, deliberately she not maintained sufficient funds in her account. 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 took the cognizance and got registered the PCR and recorded the sworn Judgment 4 C.C.No.2929/2018 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 P12. The PW.1 was subjected for cross-examination by the advocate for the accused.
6. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein the accused denied the same and the answer given by her was recorded. In this case, the accused not choosen to enter into witness box and also not produced any document.
7. Complainant counsel has submitted his detailed written arguments, apart from adduced oral arguments. Accused counsel has not addressed his side arguments.
Judgment 5 C.C.No.2929/2018
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, he paid sum of Rs.9,00,000/- on 28.09.2016 as hand loan to the accused, and in turn, for discharge of legal recoverable debt, the accused issued the Ex.P1 cheque bearing No.327154, dated:20.11.2017 for sum of Rs.9,00,000/- drawn on Corporation Bank, RPC Layout 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?
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
10. 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 6 C.C.No.2929/2018 The PW.1 to prove his case choosen to examined herself and filed affidavit by reiterating the complaint averments in toto, and produced the documents at Exs.P1 to P12, they are:
a) Ex.P1 is the cheque bearing No.327154 issued by the accused for sum of Rs.9 lakhs dated:20.11.2017, drawn on Corporation Bank, RPC Layout Branch, Vijayanagar, Bengaluru.
b) Ex.P1(a) is the alleged signature of accused.
c) Ex.P2 is the Bank Memo dated:29.11.2017.
d) Ex.P3 is the Legal Notice dated:12.12.2017.
e) Exs.P4 & P5 are the Postal receipts.
f) Exs.P6 & P7 are the unserved R.P.A.D covers.
g) Exs.P6(a) & P7(a) are the legal notices at Exs.P6 & P7.
h) Ex.P8 is the cash receipt executed by accused in favour of complainant.
i) Ex.P8(a) is the signature of accused.
j) Ex.P9 is the private complaint.
k) Ex.P9(a) is the signature of complainant.
l) Ex.P10 is the certified copy of entrepreneurs memorandum part-1 acknowledgment issued by Joint Director, District Industries Center in favour of complainant herein.
m) Ex.P11 is the certified copy of gift deed dated:31.07.2010 executed by one K.B.Nagesh, who is the husband of complainant in favour of complainant and
n) Ex.P12 is the house lease agreement dated:01.08.2016 entered into between complainant and one Udayakumar.
Judgment 7 C.C.No.2929/2018
11. 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) AIR 2019 SC 2446
b) AIR 2019 SC 1876
c) 2018(8) SC 165
d) 2017 (5) SC 737
e) 2019 (1) Kar. L.R.171
f) 2019 (1) Kar.LR 185
g) Crl.A.No.2541/2008
h) Crl.A.No.156/2010
12. In this case, the accused has not choosen to enter into witness box and also not produced any document, in order to prove her defence evidence.
13. While appreciate the materials on records and evidence, this court has gone through the decisions stated supra apart from the other decisions.
14. After detailed cross-examination done by the advocate for accused to the PW.1, the complainant got closed her side. Thereafter, the incriminating evidence made against the accused was read over and explained to her as required under Section 313 Judgment 8 C.C.No.2929/2018 of Cr.P.C., wherein, the accused denied the incriminating evidence made against her. While gave statement, the accused categorically admitted the receipt of legal notice and stated, she does not gave reply to the same. She also defended by gave statement that, complainant run Sthree Shakthi Sangha coupled with did chit business. Complainant reside in her vicinity, therefore, she knew the accused. The accused resides in rented house and for the purpose of construction of house or any other reasons; she not borrowed any loan nor executed On demand promissory note and consideration receipt or any other document or got issued Ex.P1-cheque in her favour. The signature found in the alleged those documents is not of her. Since, accused was resides in rented house, at the time of she shifted her house, in order to safeguard got kept the documents in the house of one Smt.Vijaya.
That apart, the complainant in the said Sangha assure to provide loan of Rs.1 lakh from government to her and collected sum of Rs.10,000/- each from her and others and not provide any such loan. Whenever, they have asked about the said loan, the complainant on vengeance colluded with one Vijaya, took the cheque of accused and fabricated her signature and filed the false case. Hence, she is not liable to pay the amount covered under Judgment 9 C.C.No.2929/2018 cheque. Though, she stated, she had defence evidence, but not entered into witness box.
15. On going through the rival contentions of the parties, it made clear that, based on the questioned cheque at Ex.P1, the complainant brought the present case stating that, for discharge of existence of legally recoverable debt of Rs.9 lakhs, accused got issued the said instrument and when its presented for encashment, as per the bank memo at Ex.P2, the same came to be dishonoured for the reasons "Funds Insufficient". Thereafter, she got issued legal notice as per Ex.P3 by way of R.P.A.D as found in Exs.P4 and P5, the same came to be returned unclaimed as found in Exs.P6 and P7. Despite that, she not paid the amount covered under the cheque nor issue reply. While borrow the loan, the accused got issued the cash receipt at Ex.P8 by affixing her signature at Ex.P8(a), hence, she is claiming the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act.
16. No doubt, the accused in this case has not admitted the claim of complainant, but she has put forth her different theory, as to the complainant possessed the questioned cheque from the house of Vijaya on vengeance, when she is asked for, why not Judgment 10 C.C.No.2929/2018 provide the loan of Rs.1 lakh from the Sangha, despite received Rs.10,000/-, the complainant by forged her signature colluded with Smt.Vijaya, filed the false case and whatever the documents the complainant stated as to loan documents, she is not signatory to the same, hence, she is not liable to pay any money, as not borrowed any such loan for any purpose. Thereby, the accused had attack on the claim of complainant. No doubt, as per Sections 118 and 139 of Negotiable Instruments Act, it made clear that, the initial statutory presumption shall be drawn in favour of complainant as to the questioned cheque issued by the accused for discharge of existence of legally recoverable debt, unless and until contrary prove.
17. The accused has not admitted the claim of complainant, but as stated above, she placed her probable defence which attack on the claim of complainant. However, by virtue of Section 139 of Negotiable Instruments Act, it made clear that, the initial statutory presumption project the interest of complainant subject to prove the contrary by the accused. Therefore, it is the initial burden on the accused to prove her contention. No doubt, in this case, the PW.1 has subjected for cross-examination in detail by the advocate for the accused on several occasions. While record 313 of Cr.P.C. statement, the accused denied the averments and Judgment 11 C.C.No.2929/2018 allegations of the complainant including the evidence legally enforceable debt by her as PW.1.
18. It is significant fact to note that, though PW.1 was categorically cross-examined by the advocate for the accused from the point of un-service of legal notice issued by the complainant at Ex.P3, while record 313 of Cr.P.C. statement, she categorically stated that, she got received the legal notice, not replied the same. When accused herself voluntarily stated in the open court, after heard the incriminating evidence made against her, she clearly admitted the receipt of legal notice, therefore, it made clear that, as suggested by accused counsel to PW.1, the legal notice is not served on accused is ruled out. Therefore, it made clear that, to maintain the present case, the compliance of mandatory provision appears to be complied by the complainant. It requires to discuss the probable defence of the accused, under which circumstances, the questioned cheque came to the possession of complainant.
19. During the course of cross of PW.1 from the point of averments and allegations made in the affidavit evidence, the advocate for accused choosen to cross-examine the PW.1, wherein, on various folds attack on the contention of the Judgment 12 C.C.No.2929/2018 complainant. The accused counsel got extracted the admissions from the complainant that, she is not the income tax assessee and to show that, she had the income run from her marketing business earning Rs.50,000/- or her husband earn any money nor received rentals as well as lent the auto rickshaw on hire, thereby, gain Rs.75,000/- per month, the complainant has not produced any document. The complainant has alleged that, the accused approached her seeking for hand loan during the month of 2nd week of September, 2016, by stating that, for the purpose of construction of residential building she sought loan. She has not discloses anything about, how she came to know about the accused, under which acquaintance it create confidence on the complainant to take decision to pay the huge loan amount, no foundation is laid. At least, in order to pay the huge loan amount of Rs.9 lakhs, there should be acquaintance between the complainant and accused or on which guarantee or expectation the complainant decided to pay the huge amount is not been explained. However, in that regard, accused counsel cross- examined the PW.1, wherein she deposed that:
"DgÉÆæ vÀgÀPÁj ªÀÄvÀÄÛ ºÀtôÚ£À CAUÀrAiÀÄ£ÀÄß ElÄÖPÉÆArzÁÝgÉ. DPÉAiÀÄ ªÀgÀªÀiÁ£ÀzÀ §UÉÎ £À£ÀUÉ UÉÆwÛ®è. DPÉ CAUÀrAiÀÄ£ÀÄß ElÄÖPÉÆArzÁÝgÉ. CzÀÄ DPÉAiÀÄ ¸ÀéAvÀzÉÆÝà C®èªÉÇà UÉÆwÛ®è."
Judgment 13 C.C.No.2929/2018
20. On perusal of the cross of PW.1, she stated that, accused had vegetable and fruits shop. More particularly she stated, she does not know her income and also stated, she does not know, whether it was her own or rented. In order to take the risk to pay the huge amount of loan, the repaying capacity is also equally important. But as per the say of PW.1, it made clear that, without ascertaining the financial capability of accused, she claiming to be paid the money itself created doubt. Unless clarifying repayment of loan of Rs.9 lakhs, on which confidence the complainant came forward to pay the huge amount of Rs.9 lakhs to the accused also made create doubt in the mind of court.
21. That apart, in the further cross-examination of PW.1, she deposed as to the alleged loan transaction that:
"DgÉÆæUÉ gÀÆ.9 ®PÀë ¸Á® ¤ÃrzÀ §UÉÎ, CµÀÄÖ ªÉÆvÀÛ £À£Àß°è EvÀÄÛ JAzÀÄ vÉÆÃj¸À®Ä zÁR¯É ºÁdgÀÄ¥Àr¹®è. CµÀÄÖ ªÉÆvÀÛ £À£Àß°è EvÀÄÛ JAzÀÄ vÉÆÃj¸À®Ä zÁR¯É ºÁdgÀÄ ¥Àr¸À§¯Éè. ¢£ÁAPÀ:28.09.2016 gÀ°è DgÉÆæ £À¤ßAzÀ ºÀtªÀ£ÀÄß ¥ÀqÉ¢zÀÄÝ, CzÀPÀÆÌ 15 ¢£ÀzÀ ªÀÉÆzÀ®Ä §AzÀÄ PÉýzÀÝgÀÄ. vÀ£Àß ªÀÄ£ÉAiÀÄ£ÀÄß PÀlÖ®Ä ºÀt PÉýzÀÝgÀÄ. «dAiÀÄ£ÀUÀgÀzÀ §½ vÀ£Àß vÁ¬ÄAiÀÄ ªÀÄ£ÉAiÀÄ£ÀÄß PÀnÖ¸À®Ä CµÀÄÖ ªÉÆvÀÛ PÉýzÀÝgÀÄ. D D¹ÛUÉ ¸ÀA§AzÀs¥ÀlÖ zÁR¯ÉAiÀÄ£ÀÄß DPÉ vÉÆÃj¹®è. D£ï-rªÀiÁåAqï ¥Áæ«Ä¸Àj £ÉÆÃl£ÀÄß DPÉ §gÉzÀÄ vÀAzÀÄ £À£ÀUÉ PÉÆlÄÖ, £À¤ßAzÀ Judgment 14 C.C.No.2929/2018 ºÀtªÀ£ÀÄß ¥ÀqÉ¢gÀÄvÁÛgÉ. D zÁR¯ÉAiÀÄ£ÀÄß ºÁdgÀÄ¥Àr¹zÉÝãÉ. DgÉÆæ ªÀÄ£ÉAiÀÄ£ÀÄß PÀlÖ®Ä ¸Á®PÉÌ Cfð ¸À°è¹zÀÄÝ, CzÀÄ ©qÀÄUÀqÉAiÀiÁzÀ §½PÀ £À£ÀUÉ ªÀÄgÀ½¸ÀĪÀÅzÁV ºÉý ¸Á® ¥ÀqÉ¢zÀÝgÀÄ. D ¸Á® ¤ÃqÀĪÁUÀ DgÉÆæ¬ÄAzÀ PÀgÁgÀ£ÀÄß §gɹPÉÆAr®è. §rØUÁV ¤ÃrgÀ°®è."
22. On reading of the above testimony of PW.1, she categorically admitted that, during the 1st day cross-examination she admittedly not produced any document to establish that, as on the date of alleged lent of loan, she possessed the requisite cash. She undertakes to produce the documents to show her capacity. The PW.1 has further stated that, 15 days earlier, the date of alleged lent of loan on 28.09.2016, accused came to her and asked for the loan for the purpose of construction of her house. Later, she clarified; it was the house of mother for construction the accused sought for money. She clearly admitted that, for construction of house, so many banks are eager to provide loan facility, under such circumstances, without seeing the genuineness of the requirement of the accused, how she came forward and made believe that, for the purpose of construction of house, she paid money. If at all, any money is paid, it should be made use of construction of the house, to show that, as per the say of PW.1, the accused had no house or site etc. At least to Judgment 15 C.C.No.2929/2018 show that, her mother had property, wherein accused took the risk to make construction also no proper explanation as to the property or whereabouts of the mother and on which guarantee, she paid money, nothing has been elicited by the PW.1. The said testimony also made clear that, the accused herself got write the On demand promissory note and gave it to the complainant and took money and the said document has been placed by her in the present case. As per say of PW.1, it also reveal that, before passing of consideration from the hands of complainant to the accused, the accused got prepared On demand promissory note by hand over the same to the complainant and received money. Therefore, it is the specific contention of the complainant that, before passing consideration, the accused alleged to be executed On demand promissory note and by hand over the same to the complainant and collected money.
23. On meticulous perusal of the document placed by the complainant from Exs.P1 to P12, the alleged On demand promissory note is not available on record. Though, she is claiming, she got produced the said On demand promissory note, the same not produced before the court. On meticulous perusal of the documents, which has been produced by the complainant, it appears that, perhaps by referring the documents at Ex.P8 - cash Judgment 16 C.C.No.2929/2018 receipt, the complainant claimed to be the said document as On demand promissory. On perusal of the document as observed earlier, no such On demand promissory note been placed by complainant, if at all, executed by the accused. Therefore, it made clear that, accused not executed On demand promissory note, hence, not produced by the complainant. The above said testimony also further discloses that, complainant was known that, before pass consideration needs to collect document. But she deposed, no On demand promissory note secured. The PW.1 has deposed, accused got executed Ex.P8 - receipt. On perusal of the same, it discloses, the accused has denied its execution. Therefore, the complainant require to prove its execution and issuance as she told, by collecting the same, she paid money to the accused. On perusal of Ex.P8, none has signed to the said document as witness to the said transaction.
24. On perusal of the Ex.P8, it discloses that, it does not bare the signature of the complainant. Though, recitals depicts executed by Smt.K.Poornima in favour of complainant, it appears to be unilateral document. Even it has not franking by pay sufficient stamp duty. On perusal of Ex.P8, it discloses, if at all, it was executed by the accused, the alleged signature of the Ex.P8(a) took at the right side bottom of the document sheet. It is Judgment 17 C.C.No.2929/2018 not affixed at least below or above the word signature. The distances in putting the alleged signature of the accused, as suggested by her counsel during the cross-examination, it was created, not signed by the accused. Hence, the defence appears to be more genuine, as it does not repose confidence. If at all, she got executed the said unilateral document in favour of complainant, she must affix her signature at proper place. If at all, complainant was part with the said document, it is equally important to obtain the signature of the complainant as accepting its recitals with regard to passing of consideration from the complainant to the accused. The said document alleged to be prepared before passing of consideration, therefore, the signature of the complainant as well as witness are very much necessary, but the same is lack. If at all, she did transaction in the presence of the witnesses could have secured the signatures of the witnesses. If she did transaction in the presence of witnesses directly it would safeguard the transaction put forth by the complainant, but she did not do so, for the reasons better known to her.
25. On perusal of Ex.P8, it noted that, it is the document sheet. Necessary stamp duty is not been paid. Even though alleged to be got executed on 28.09.2016, the paper appears to be afresh.
Judgment 18 C.C.No.2929/2018 Was it possible to maintain the said document sheet afresh as such over a period of 4 years is also one of the circumstances created doubt as to the genuineness. As alleged by the PW.1, the accused got written On demand promissory note by herself before handed over money. On perusal of Ex.P8, it is in computer typed copy not prepared by hand writing. If at all, it was written at the instance of accused, admittedly, it was prior to hand over the alleged money to the accused. Therefore, the said cash receipt came into force only after passing of consideration from the hands of complainant to the accused. Admittedly, the complainant not examined any one of the independent witness nor produce any acceptable document before this court as to the same. The Ex.P8 document is the unilateral document alleged to be executed by the accused for the discussion made supra. Rather it inspire confidence, it creates doubt improve alleged transaction. Therefore, it is not safe to rely upon the Ex.P8.
26. The above said reproduction testimony of PW.1 also revealed that, at the fag end, accused told her that, already applied for housing loan, after release of the same would repay money to her. She stated, while lent money, she not secured any agreement nor gave it for interest, such being the contention of the PW.1, it is equally important to focus on the pleading of the Judgment 19 C.C.No.2929/2018 complainant. Wherein, she contended that, she lent loan of Rs.9 lakhs on 28.09.2016, accused undertakes to repay the same within 12 months. Can any prudent person able to pay the said huge amount of Rs.9 lakhs for the period of 12 months, without expecting any profit or interest itself is created doubt. Though complainant has contended, the Ex.P8 cash receipt was executed by the accused, as discussed earlier, for the various reasons stated supra, the complainant utterly failed to prove its due execution consequent to receipt of Rs.9 lakhs loan from the complainant.
27. As discussed earlier, the complainant to show her financial capacity not produced any document. The PW.1 in her further cross-examination has deposed, how she mobilized the fund. In that regard, it requires to focus on the evidence of PW.1, as to how she mobilized and handed over loan amount to the accused. The PW.1 during in her cross-examination has deposed that:
"DgÉÆæUÉ £ÀUÀzÁVAiÉÄà ºÀt PÉÆnÖzÉÝ£ÀÄ. D ºÀt £À£Àß ªÀÄ£ÉAiÀÄ£ÀÄß ¨sÉÆÃUÀåPÉÌ ºÁQzÀÄÝ, §AzÀ ºÀt ªÀÄ£ÉAiÀÄ°èvÀÄÛ CzÀ£ÀÄß DgÉÆæUÉ PÉÆnÖzÉÝãÉ. D ªÀÄ£ÉAiÀÄ ¸ÀASÉå 106. ¨ÀsÉÆÃUÀå ¥ÀvÀæ ºÁdgÀÄ ¥Àr¸À®Ä vÉÆAzÀgÉ E®è. DgÉÆæ £À£Àß ªÀÄ£ÉUÉ §AzÀÄ Judgment 20 C.C.No.2929/2018 £ÀUÀzÁV ºÀt ¥ÀqÉ¢zÀÝgÀÄ, D ¸ÀAzÀ¨Àsð ªÀÄ£ÉAiÀÄ ºÉÆgÀUÉ DgÉÆæAiÀÄ UÀAqÀ ¤AwzÀÝgÀÄ."
28. On meticulous perusal of the testimony of PW.1, she deposed that, by cash she handed over money to the accused. The said money mobilized, out of the lease amount in respect of house No.106 and she had no impediment to produce the lease agreement as to mobilization of found. More particularly, she stated, the accused came to her house, by that time, her husband was stood outside the house and accused took money from her. The complainant stated by way of cash, she gave money to the accused. Therefore, it is not her contention that, she is alone in her house, but some other persons in the house should be there at the time of alleged payment of money. In that regard, no proper explanation is forth coming from the side of complainant, as to, on whose presence the alleged loan was handed over by the complainant to the accused and in that regard, she not stated anything nor examine inmates of her house.
29. If at all, she did the said huge loan amount transaction, definitely, her husband or inmates of family must know the sequence. In that regard, no explanation is forth coming nor examined any one of them to substantiate her contention. She Judgment 21 C.C.No.2929/2018 said by lease out house No.106, she mobilized fund. To that effect, on the subsequent hearing date she got produced the document at Ex.P12. On meticulous perusal of the Ex.P12 it discloses the recitals in the name and style of the lease agreement in respect of residential house dated:01.08.2016 executed by Smt.Yashodha.K.M in favour of lessee by name Udayakumar for the period of 2 years for the lease amount of Rs.7 lakhs. On meticulous perusal of the said document it discloses, it was of Rs.2/- document sheet. The agreement validity more than 11 months, as per the relevant provision of Registration Act, requires to be register. In order to rely upon same, at least sufficient stamp duty has to be paid by the parties to the said document, but except printing of document sheet Rs.2/-, no endorsement or Franking is made by the competent authority as per law the said document came in to force. The said document is unregistered, on going through the same, it discloses the name of complainant and one Udayakumar, lesser and lessee. The witnesses' names are cited as S.Bhagya and K.B.Nagesh. Even particulars of the witness at Ex.P12 is also incomplete. In order to identify those, to drag them to witness box for understand the genuineness of Ex.P12. If at all, the complainant did the legal transaction definitely, the said document should be in accordance Judgment 22 C.C.No.2929/2018 with law and no reliance can be placed on the Ex.P12, as the same is not within the parameter of law. The said agreement also discloses, one endorsement at the fag end made by Udayakumar dated:15.09.2018 stating, Rs.7 lakhs were received by him from the complainant and quit the lease premises.
30. In order to rely upon the said contention of the complainant, definitely, the said Udayakumar is the best person to examine before this court, as to the alleged payment of Rs.7 lakhs as lease amount paid by him to the complainant and vice-versa. The said document discloses, on 15.09.2018 the complainant claimed to be repaid Rs.7 lakhs to lessee by name Uday. During the course of cross of PW.1, she deposed that, apart from the accused, she alleged to be paid loan sum of Rs.6,50,000/- to one Kavya and Rs.2 lakhs to one Savitha. The PW.1 has not discloses, when she paid money to them apart from the complainant. As she claiming, she is doing business as found in the licence produced at Ex.P10. For the purpose of doing business of Micro / Manufacture of Grinding of Termaric and Packing, Agarabathi, Champor and Kumkum, she secured licence. The said licence was received by the complainant on 05.02.2011 for the period of 2 years. In order to show that, even then she continued the said business as on the date of alleged lent of loan on 28.09.2016, she Judgment 23 C.C.No.2929/2018 not produced any document as to mobilization of fund from the said business. The said licence require to be renewal, but to establish the continuity of her business, she not produced any document. The said document discloses that, after lapse of licence period at Ex.P10, she not continued the business. If at all continued, she must have to produce renewal copy of licence or examine any one of the independent witness nor produce any photographs etc., pertaining to her business, but she not did. The said document discloses, after lapse of licence period, she has no income, therefore, she stopped her business.
31. The complainant has projected that, as discussed earlier, claimed paid Rs.9 lakhs to the accused on 28.09.2016 and another Rs.6,50,000/- to Kavya and Rs.2 lakhs to one Savitha. In all she claimed to be paid loan of Rs.17,50,000/- to the above said 3 persons. Which depicts that, when she herself is under the trouble todo the business or gather income, on which source she mobilized huge fund for alleged lent of loan itself created doubt. Since, the accused has attack on the claim of complainant by questioning her financial capacity, she needs to produce document, but the same is lacks.
Judgment 24 C.C.No.2929/2018
32. That apart, she claiming her husband had auto or auto driver and also gathered the income from rentals, she not produced any document nor examined any one of the witness. If at all, she could have examine her husband as to mobilization of fund, it will reveal the truth about the true transaction, but complainant avoided him to examine. If at all, complainant paid Rs.17,50,000/- arranged loan of Rs.9 lakhs to the accused, definitely, she must have the source of income, but she not produced any such document. Lent loan of Rs.17,50,000/- is not a small amount, unless had requisite fund, question of lent does not arise. Therefore, it requires to explain, to whom, where, when she lent loan and what was the compelling circumstances to pay the said huge loan amount at the risk and cost of the complainant. How she mobilized the fund, she needs to explain, but not been did, for the reasons better known to her.
33. As said earlier, the complainant has contended that, she lent loan, she not disclosed her financial commitment. But in the further cross-examination of PW.1, she deposed that:
"¢£ÁAPÀ:19.03.2015 gÀAzÀÄ £Á£ÀÄ £ÁUÀ¥ÀÅgÀ PÉærmï PÉÆÃ- D¥ÀgÉÃnªï ¸ÉƸÉÊnAiÀÄ°è gÀÆ.4 ®PÀëPÉÌ ¸Á®UÁgÀ¼ÁVzÉÝ JAzÀgÉ ¸Àj. ¸ÀzÀj ¸ÉƸÉÊnUÉ £Á£ÀÄ ¸Á®zÀ PÀAvÀ£ÀÄß ¥ÁªÀw¸ÀĪÀ §UÉÎ Judgment 25 C.C.No.2929/2018 gÀÆ.2,31,145/- UÀ½UÉ ZÉPï ¸ÀASÉåB316004 ¤ÃrzÀÄÝ, £À£Àß SÁvÉAiÀÄ°è ¸ÁPÀµÀÄÖ ºÀt E®èzÀ PÁgÀt, D ZÉPï CªÀiÁ£ÀåUÉÆAqÀÄ, ¸ÀzÀj ¸ÉƸÉÊnAiÀĪÀgÀÄ £À£Àß «gÀÄzÀÞ ¹¹ ¸ÀASÉåB16863/16 gÀ ZÉPï ¨Ë£ïì ¥ÀæPÀgÀtªÀ£ÀÄß ªÀiÁ£Àå 26 £Éà J¹JAJA £ÁåAiÀiÁ®AiÀÄzÀ°è ¥ÀæPÀgÀt zÁR°¹zÁÝgÉAzÀgÉ ¸Àj. D ¥ÀæPÀgÀtzÀ°è £À£ÀUÉ ²PÉëAiÀiÁVzÉ JAzÀgÉ ¸Àj. ¸ÁQëAiÀÄÄ DgÉÆæ £À£Àß §½ ¸Á®ªÀ£ÀÄß ¥ÀqÉzÀ PÁgÀt, D ¸ÉƸÉÊnUÉ £Á£ÀÄ ¸ÀPÁ®zÀ°è ¸Á® PÀlÖ¯ÁUÀ°®è JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. ¸ÀtÚ ªÉÆvÀÛªÀ£ÀÄß ¸ÉƸÉÊnUÉ £Á£ÀÄ ¥ÁªÀw¸À®Ä ¸ÁzÀsåªÁUÀzÉà EgÀĪÁUÀ, DgÉÆæUÉ zÉÆqÀØ ªÉÆvÀÛzÀ ¸Á® ¤ÃqÀĪÀ ¸ÁªÀÄxÀåð £À£ÀUÉ E®è JAzÀgÉ ¸ÀjAiÀÄ®è."
34. In the earlier appraisal of facts, the complainant claiming the alleged lent of loan of Rs.17,50,000/- to various persons including the accused herein. But the above said testimony made clear that, on 19.03.215 itself prior to the alleged lent of loan dated:28.09.2016 to the accused, she was the lonee under Nagapura Credit Co-operative Society for tune of Rs.4 lakhs. More particularly she stated, for the payment of loan installment, she got issued cheque bearing No.316004 for sum of Rs.2,31,145/- to the said Society, the same came to be dishonoured for insufficient funds. Hence, the said Society got filed C.C.No.16863/16 cheque bounce case before the Learned XXVI ACMM Court, wherein, she was convicted. The PW.1 has Judgment 26 C.C.No.2929/2018 stated that, since, she lent loan to the accused, she not able to money to the said Society, therefore, it was happened. It is pertinent to note that, she as on 19.03.2015 was defaulter of loan of Rs.4 lakhs to the said Society. Under such circumstances, the PW.1 has deposed that, since she gave loan to the accused, she was not paid money to the Society. If considers an analogy of the complainant, the alleged loan lent to the accused on 28.09.2016, which is much later to, she already stood as defaulter of Rs.4 lakhs as on 19.03.2015. Therefore, it made clear that, before alleged lent of loan to the accused, the complainant already became defaulter; even she was under the risk of dishonour of cheque and got convicted.
35. Under such circumstances, inspite of clear the said liability, complainant paid loan to the accused much later, as alleged in the complaint itself creates strong doubt, as to her financial capacity. If at all, she received leased amount as per Ex.P12, she could have been used it for meet out of her emergent commitment. Though, she already convicted inspite of comply the judgment as she contended on the later days, she gave money to the accused creates doubt as to the genuineness of transaction. The prudent man normally got clear her commitment, then to assist others, unlike the complainant herein. The very evidence of PW.1 Judgment 27 C.C.No.2929/2018 creates doubt, as to the financial capacity and alleged lent of loan to the accused.
36. The serious despite has raised by the accused, as to the financial capacity of the complainant, as to payment of huge amount of loan to the accused. Even in the cross of PW.1, it was strongly suggested that, the accused kept the security document including cheque in the house of Smt.Vijaya, the same were taken by the complainant through unexplained source in order to extract money by forged her signature and got filled and filed false case. The said suggestion is denied by the complainant. In that regard, it is the complainant require to examine the independent witness, as to how she possessed the questioned cheque of the accused, as she stated, she knew Smt.Vijaya, at least she could have been drag into the witness box and extract truth, as the accused not choosen did so. But she did not choosen to do so. The complainant as discussed earlier utterly failed to prove her financial capacity and mobilized the huge amount of Rs.9 lakhs. Accordingly, she failed to prove the alleged payment made on 28.09.2016 to the accused on receipt of the consideration receipt at Ex.P8. The complainant not successfully proved that, the accused got issued questioned cheque for discharge of her legal liability.
Judgment 28 C.C.No.2929/2018
37. That apart, it is pertinent to note that, on going through the Ex.P1-cheque, the hand writing with regard to the signature and other fillings are prima facie appears to be different. On meticulous perusal of the alleged signature of the accused at Ex.P1(a), it disclose to the bare eyes that, when mention the name of accused while put signature inspite of straightaway mentioned signature as Poorima.K, the Ex.P1(a) signature missing of letter 'n' can be seen. The said 'n' in small subsequently added by way of alteration. In order to made such alteration, if at all, it was definitely made by the accused, the complainant could have taken counter signature as to the same, but the same is lacks. The person who put signature missing of letters in the name is highly impossible and as suggested by the accused, it has to be presume that, the signature found at Ex.P1(a) is not made by accused. In order to invite the risk of misusing of questioned cheque. Despite, the accused attack on the complainant as to forged the signature of accused by the complainant, it is her to call banker of accused and summon the specimen signature in order to identify the genuineness of her signature. In that regard, no effort has been made by her.
38. On overall appraisal of materials available on record, it made clear that, the accused only by way of cross-examining the Judgment 29 C.C.No.2929/2018 PW.1 coupled with rely upon the documents produced by complainant got destroyed the case of complainant and created doubtful circumstances, as to the genuineness of the transaction put forth in the complaint. No doubt, in this case, the accused not entered into witness box.
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".
39. As per the said dictum, the accused need not require to enter in to the witness box to prove her probable defence, she can Judgment 30 C.C.No.2929/2018 made use of opportunity to prove her defence by way of cross- examining the PW.1 or rely upon her documents. Accordingly, the accused choosen to do so and successfully proved her probable defence. Mere non-reply the legal notice is not a ground to accept the contention of the complainant. On appraisal of materials available on record, it is the consider opinion of this court that, the complainant has utterly failed to prove guilt of the accused beyond the reasonable doubt by furnishing clear, convincing, clinching and linking evidence to convict the accused. Hence, the accused is entitled for benefit of doubt for acquittal.
40. On overall appreciation of the material facts available on record, it discloses that, despite the accused harping on the very claim of the complainant, he fails to demonstrate his 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.
In the 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 Judgment 31 C.C.No.2929/2018 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".
41. 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.9 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.
In a decision reported in AIR 2006 Supreme Court 3366 (M.S.Narayana Menon Alian Mani V/s. State of Kerala and another). The Hon'ble Apex court held that:
"Once the accused discharges the initial burden placed on him the burden of proof would revert back to the prosecution".
Judgment 32 C.C.No.2929/2018
42. 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, she is not liable to pay Ex.P1 cheque amount of Rs.9 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 of liability of Rs.9 lakhs. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
Apart from that, in a decision reported in, KCCR 12 (3) page 2057, the Hon'ble Apex Court held that:
"Mere issuance of cheque is not sufficient unless it is shown that, the said cheque was issued Judgment 33 C.C.No.2929/2018 towards discharge of legally recoverable debt. When the financial capacity of complainant is questioned, the complainant has to establish his financial capacity".
43. In the case on hand, accused has questioned the financial capacity of complainant. Complainant has not produced any document to show her financial capacity to lend an amount of Rs.9 lakhs to accused. When complainant has failed to prove the transaction alleged in the complaint, then the question of issuing the cheque for discharge of Rs.9 lakhs does not arise. The evidence placed on record clearly probablize that, complainant has failed to prove that, accused issued the cheque for discharge of liability of Rs.9 lakhs. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
44. 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 Ex.P1 in discharge of her legally payable debt for valid consideration. Hence, rebutted the legal presumptions under Section 139 and 118 of Negotiable Instruments Act in favour of the accused.
Judgment 34 C.C.No.2929/2018
45. 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, accused has to set up a probable defence and she need not prove the defence beyond reasonable doubt.
46. 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.9 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 Judgment 35 C.C.No.2929/2018 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.
47. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
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.
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 14th day of July - 2020) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 36 C.C.No.2929/2018
ANNEXURE
List of Witnesses examined on behalf of Complainant:
PW-1 : Yashoda.K.M List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque
Ex.P1(a) : Signature of accused
Ex.P2 : Bank endorsement
Ex.P3 : Office copy of legal notice
Exs.P4 & P5 : Postal receipts
Exs.P6 & P7 : Unserved R.P.A.D covers
Exs.P6(a) & P7(a) : Legal notices at Exs.P6 & P7
Ex.P8 : Cash receipt
Ex.P8(a) : Signature of accused
Ex.P9 : Private complaint
Ex.9(a) : Signature of complainant
Ex.P10 : CC of Entrepreneurs Memorandum part-1
acknowledgment
Ex.P11 : CC of gift deed
Ex.P12 : House lease agreement
List of Witnesses examined on behalf of the defence:
- None -
List of Exhibits marked on behalf of defence:
- Nil -
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 37 C.C.No.2929/2018
14.07.2020.
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.
The bail bond and cash security/surety bond of the accused stands cancelled.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.