Bangalore District Court
Sri. Madappa Gopal vs Smt. Anitha Srinivas on 4 March, 2015
IN THE COURT OF THE XIX ADDL.CHIEF
METROPOLITAN MAGISTRATE AT BANGALORE CITY
Dated this the 4th day March 2015
PRESENT: SMT. ISHRATH JAHAN ARA, B.A.L., L.L.B.,
XIX ADDL.C.M.M.BANGALORE.
Case No: CC No. 9710/2009
Complainant: Sri. Madappa Gopal
S/o. Late M. Madappa,
Aged about 45 years,
Proprietor,
M/s. M.G. Traders & Exports Ltd.,
Lower Palace Orchards,
Sadashivnagar,
Bangalore - 80.
Accused: Smt. Anitha Srinivas,
No.76, Aishwarya Lakshmi Nilaya,
9th Main Road,
7th Cross,
Saraswathipura,
Mysore - 570 009.
Offence complained of: U/s.138 of N.I.Act
Plea of accused: Pleaded not guilty
Opinion of the Judge Accused not found guilty
Date of order: 4th March 2015
JUDGMENT
The complainant has filed this complaint U/s.200 of Cr.P.C. against the accused for the offence punishable U/s. 138 of N.I. Act. 2 C.C.No.9710/2009
2. The brief facts of the complaint is as hereunder:
The complainant stated that he is the proprietor of M/s.
M.G. Traders and Exporters Ltd., carrying business of Export of Iron and electronic hardware to various countries including Hongkong. The husband of the Accused and this Complainant are good friends along with their family members. This Accused left her husband and she was living separately. The Accused requested this Complainant to help her daughter education and by considering the request of the Accused, the Complainant provided accommodation at his house to the daughter of this Accused. The Accused had availed a hand loan of Rs.2,50,000/- from this Complainant in the month of June 2006 in order to meet her necessity by agreeing to repay the loan amount within a period of 2 years.
3. He further stated that the Accused had also opened a Company under the name and style of M/s. Aishwarya Imports and Exports through Partnership Deed along with one Sri. Prashanth S/o. Gangadhar, who is also employee of the Complainant Company. During the course of employment the said 3 C.C.No.9710/2009 Sri. Prashanth, the Accused and Prashanth colluding with each other had transferred a sum of Rs.11,43,513/- into their bank account. After this Complainant get the bank statement, came to know that the funds were transferred from his account M/s. M.G. Traders and Exporters Ltd. to the account of M/s. Aishwarya Imports and Exports. After questioning the Accused regarding transfer of the amount, the Accused agreed to settle the said amount and also agreed to repay the loan amount of Rs.2,50,000/-. The Accused in order to discharger her liability, had issued a cheque bearing No. 068354. dtd. 7/11/2008 for a sum of Rs.13,93,513/- drawn on Canara Bank, Saraswathipuram, Mysore with a request to present the said cheque for encashment.
4. It is further submitted by the Complainant that, the Complainant presented the said cheque before his banker ING Vysya Bank Ltd., Sadashivanagar branch, Bangalore for encashment. But the said cheque returned dishonoured with an endorsement "funds insufficient" on 5.12.2008 and the same was informed to this Accused. The Accused has failed to make payment of the cheque amount, the Complainant got issued the Legal Notice on 24.12.2008 both through RPAD and UCP calling upon the 4 C.C.No.9710/2009 Accused to discharge her liability. The notice sent through RPAD returned unserved with a postal shara "not claimed" on 9/1/2009 but the notice issued under UCP was duly served upon this Accused. The Accused even inspite of receipt of Legal Notice neither chosen to make payment of the cheque amount nor she has sent her reply by denying the transaction. The Accused knowing fully well that she has no sufficient funds in her bank account, had issued a bogus cheque only with an intention to cheat this Complainant and thereby, he has committed an offence punishable u/Sec. 138 of N.I. Act.
5. After recording sworn statement of the complainant the private complaint lodged by the complainant was registered as a criminal case, summons was issued as against the accused. The accused appeared through her counsel and she was enlarged on bail. Plea of accusation was read over to the accused. The accused pleaded not guilty and claimed to be tried
6. The complainant himself got examined as PW1 and also examined a witness as PW2. He got produced 20 documents marked as Ex.P1 and Ex.P20 and closed his side of evidence. 5 C.C.No.9710/2009
7. After closure of the complainant side evidence, the accused statement u/Sec. 313 Cr.P.C. recorded and read over to the accused. Accused denied the entire incriminating evidence in toto and she intended to lead her evidence. The accused got herself examined as DW1 and also she examined two witnesses from her side as DW2 and DW3. She got produced 10 documents marked as Ex.D1 to Ex.D10 and closed her side of evidence.
8. I have heard the arguments on both sides and I have also perused the entire records.
9. The only point arise for my consideration is:
1. Whether the Complainant has proved the guilt of the accused u/s 138 of NI Act beyond all reasonable doubts?
2. What order?
10. My findings to the above point are as under:
Point No. 1 In the Negative Point No. 2 As per final order for the following REASONS
11. Point No.1: The entire burden is on the complainant to prove his case and also to prove the above point. In order to prove 6 C.C.No.9710/2009 the same, the Complainant stepped into the witness box and got examined as PW1 and he filed his affidavit in lieu of the oral evidence by reiterating the complaint averments.
12. PW1 deposed that he is the Proprietor of M/s. M.G. Traders and Exporters Ltd. carrying business of export of Iron Ore and Electronic hardware to various countries including Hongkong. He deposed that the husband of the Accused is his good friend along with his family members. He deposed that the Accused is leaving separately from her husband and therefore she requested him to help her daughter's education. He deposed that he provided accommodation to the daughter of this Accused at his house at Sadashivanagar and he had also helped the Accused with the financial assistance of Rs.2,50,000/- in the month of June 2006 in order to meet her necessity. He deposed that he advanced the loan amount of Rs.2,50,000/- upon the request of this Accused and this Accused has agreed to repay the loan amount within a period of two years.
13. He further deposed that the Accused opened a Company in her name under the name and style of M/s. Aishwarya Imports and Exports through Partnership Deed along with one Sri. 7 C.C.No.9710/2009 Prashanth S/o. Gangadhar who is also an employee in his Company at M/s. M.G. Traders and Exporters Ltd. and during the course of his employment at his offence, the said Sri. Prashanth colluding with this Accused, had transferred a sum of Rs.11,43,513/- (23,337-00 U.S. Dollars). He after getting bank statement came to know about the transfer made by the said Sri. Prashanth to the account of this Accused M/s. Aishwarya Imports and Exports. He deposed that upon questioning the Accused she came forward to settle the transferred amount of Rs.11,43,513/- along with hand loan of Rs.2,50,000/- availed by her and she in order to discharge her liability, had issued a cheque bearing No. 068354. dtd. 7/11/2008 for a sum of Rs.13,93,513/- drawn on Canara Bank, Saraswathipuram, Mysore with a request to present the said cheque for endorsement and it will be honoured on presentation.
14. He deposed that by believing the words of the Accused, he presented the said cheque before his banker ING Vysya Bank ltd., Sadashivanagar, Bangalore but the said cheque returned dishonoured with an endorsement "funds insufficient" on 15/12/2008 and the same was informed to this Accused. He 8 C.C.No.9710/2009 deposed that as the Accused has failed to make payment of the cheque amount, he got issued the Legal Notice on 24/12/2008 through RPAD as well as UCP calling upon the Accused to make payment of the cheque amount and the said notice was returned unserved with a postal shara "not claimed" by the addressee but the notice issued under UCP was duly served upon this Accused. He deposed that the Accused even inspite of receipt of Legal Notice, failed to make payment of the cheque amount, but she has sent an untenable reply by denying the transaction. He deposed that the Accused knowing fully well that she has no sufficient funds in her bank account, had issued a bogus cheque and thereby, he had committed an offence.
15. PW1 in order to prove his case got produced the cheque issued by this Accused marked as Ex.P1. He deposed that the signature found on Ex.P1 is that of this accused. He got identified the signature of this accused marked as Ex.P1(a). He got produced the bank endorsement along with bank return memo marked as Ex.P2 and Ex.P.3 respectively. He got produced copy of the legal notice along with RPAD receipt and UCP receipt marked Ex.P4 to Ex.P6. He got produced the RPAD Cover marked as Ex.P.7 and the 9 C.C.No.9710/2009 notice kept in the said cover marked as Ex.P.8. He got produced the reply notice issued by this Accused along with a postal cover marked as Ex.P.9 and Ex.P.9(a). He got produced three withdrawal slips along with three statements of accounts for telegraphic transfer of amount along with a letter addressed by the Bank Manager of Bank of India, Shenzhen branch. The said documents were marked subject to admissibility of the cheque amount and objection as Ex.P10 to Ex.P.16. He got identified the complaint marked as Ex.P.17. He got produced the copy of the cheque issued in favour of this Accused along with a bank statement for having the said amount to the bank account of this Accused marked as Ex.P.18 and Ex.P.19 respectively. He got produced his bank extract for deduction of the said amount from his bank account disclosed in Ex.P.18 marked as Ex.P.20.
16. The accused has denied the entire case of the Complainant and denied the very fact that she had borrowed a sum of Rs.2,50,000/- from this Complainant and even she colluding with one Sri. Prashanth S/o. Gangadhar has misappropriated the funds of this Complainant from his Company M/s. M.G. Traders and Exporters Ltd. amounting to Rs.11,43,513/- and transferred 10 C.C.No.9710/2009 the amount into the bank account of her company M/s. Aishwarya Imports and Exports and thereby she admitting her liability to pay an amount of Rs.13,93,513/- had issued her cheque and the same was bounced. The Learned Counsel for the Accused subjected PW1 for cross-examination and he was extensively cross-examined the PW1 by denying his testimony.
17. PW1 in his cross-examination categorically stated that he was carrying business of Iron Ore and Electronic Hardware in the name and style of M/s. M.G. Traders and Exporters Ltd. Company at Hongkong and he is the sole Director of the said company. He has stated that he has no documents with him to prove that he is the owner of M/s. M.G. Traders and Exports Ltd. and his Company was registered as required under law. He admitted the suggestion that the sister of this Accused one Sri. Manjula is well acquainted to him for more than 30 years and even he has stated that her son was a partner to his company and as such the said Smt. Manjula was frequently visiting him. Though he denied the suggestion that after divorce of the said Smt. Manjula with her husband, he was residing along with Smt. Manjula and her son. However, he has 11 C.C.No.9710/2009 categorically admitted that he has close acquaintance with Smt. Manjula and her son.
18. PW1 in his cross-examination stated that he has no documents with him to prove that he had financial capacity to advance the loan amount of Rs.2,50,000/- to this Accused and even he has no documents with him to prove that he had advanced a sum of Rs.2,50,000/- to this Accused in the month of June 2006. PW1 stated that he after withdrawing Rs.2,50,000/- from the Canara Bank account, at Hospet branch, had advanced the same in favour of this Accused. Admittedly, the PW1 except adducing the oral evidence that he had withdrawn a sum of Rs.2,50,000/- from his bank account, Canara Bank, Hospet branch, has not chosen to prove the same by adducing the documentary evidence before this court.
19. Moreover, PW1 himself in his cross-examination stated that he has not produced any documents before this court to prove this fact and even he has no documents with him to prove that he had withdrawn a sum of Rs.250,000/- from his bank account with an intention to advance the same in favour of this Accused. Moreover, PW1 in his cross-examination stated that he has not obtained any documents from this Accused towards the security of 12 C.C.No.9710/2009 the loan amount ofRs.250,000/- and even he has stated that the Accused has not agreed to pay interest on the loan amount. Likewise, PW1 stated that the is not aware how many currency notes he has given to this Accused and under which denomination. He admitted the suggestion that there was no any business transaction in between his company with the company of this Accused.
20. Likewise, PW1 in his cross-examination stated that even though he is an income tax assessee, submitting his income tax returns every year to the income tax department but he has not disclosed the loan transaction in his income tax returns and even he has not disclosed that he advanced a sum of Rs.2,50,000/- to this Accused in his income tax returns. Likewise, PW1 admitted that he has not disclosed about the loan transaction in any of his business related documents and even he has not maintained any balance sheet or ledger for having advanced the loan amount to this Accused. Though he denied the suggestion that during the year 2006 he was not having any office at Bangalore and there was no any loan transaction in between him with this Accused and even this Accused hasnot borrowed any kind of loan much less amounting toRs.2,50,000/- from him in the month of June 2006. 13 C.C.No.9710/2009
21. However, PW1 except adducing the oral evidence that on the request of this Accused, he had advanced a sum of Rs.2,50,000/- in the month of June 2006 has not chosen to prove the same by adducing the documentary evidence before this court. Admittedly, except the oral evidence of PW1, which has been categorically denied by this Accused, PW1 has not chosen to produce any piece of evidence before this court to prove that there was a loan transaction between him with this Accused and on the request of the Accused, he had advanced a sum of Rs.2,50,000/- to this Accused. Admittedly, the initial burden is on this PW1 to prove that he had a loan transaction with this Accused and on the request of this Accused he had advanced a sum of Rs.2,50,000/- to this Accused and this Accused after receipt of the loan amount, in order to repay the loan amount, had issued her Ex.P.1 cheque along with admitting her liability to pay the amount misappropriated by one of her partner Sri. Prashanth totally amounting to Rs.13,93,513/- and the same was bounced.
22. As I have discussed supra, PW1 except adducing the oral evidence that he had withdrawn the loan amount of Rs.2,50,000/- from his bank account with an intention to advance the same in 14 C.C.No.9710/2009 favour of this Accused, has not chosen to prove the same by adducing the documentary evidence before this court. There is nothing on record to believe that there was a loan transaction in between this Complainant and Accused and this Accused had borrowed a hand loan of Rs.2,50,000/- from this Complainant in the month of June 2006 and she was liable to pay the said amount in favour of PW1.
23. PW1 has further deposed that the Accused colluding with one Sri. Prashanth S/o. Gangadhar has misappropriated the funds of his Company M/s. M.G. Traders and Exporters Ltd at Hongkong and they transferred a sum of Rs.11,43,513/- towards bank account of M/s. Aishwarya Imports and Exports as such she admitting her liability to pay the said amount, had issued her Ex.P.1 cheque for a total sum of Rs.13,93,513/- and the same was bounced. Even this fact was categorically denied by the Accused.
24. The Accused has categorically denied the fact that Sri.Prashanth has misappropriated an amount to an extent of 23,337-00 U.S. Dollars at M/s. M.G. Traders and Exporters Ltd. at Honkong. Though the Accused has a dmitted the fact that Sri. 15 C.C.No.9710/2009 Prashanth was working along with this Complainant at his office but she has categorically denied the fact that Sri. Prashanth misappropriated the funds of this Complainant amounting to 23,337-00 U.S. Dollars and the same was transferred into her company M/s. Aishwarya Imports and Exports. Though suggestion was put to PW1 during his cross-examination by suggesting that the said Sri. Prashant was spending money for the office expenses and also he was sending money to his Company M/s. M.G. Traders and Exporters Ltd. Though PW1 admitted this fact and even he has admitted that he has not separately prepared a balance sheet at Hongkong branch office and even he has not audited his account relating to his company at his Hongkong office. But she has categorically deposed that the Accused colluding with Sri. Prashanth misappropriated the funds of this Complainant amounting to 23,337-00 U.S. Dollars and the same was transferred into her company account of M/s. Aishwarya Imports and Exports.
25. Admittedly, PW1 has not chosen to produce any piece of documents before this court to prove that his auditor had audited the account relating to his company at Hongkong and during the 16 C.C.No.9710/2009 audit, he found out that the funds were misappropriated by this Accused. Admittedly, the PW1 except adducing the oral evidence that Sri. Prashanth colluding with this Accused had misappropriated a sum of 23,337-00 U.S. Dollars and they illegally transferred the said amount into the account of M/s. Aishwarya Imports and Exports, has not chosen to produce documents before this court to convince this court that the said Sri. Prashanth and this Accused have intentionally and fraudulently misappropriated the funds at Honkong and they transferred the company funds into their personal account with an intention to cheat this Complainant.
26. No doubt, the PW1 got produced Ex.P.10 to Ex.P.16 documents before this court to prove that the said Sri. Prashanth withdrawn a amount from his company M.G. Traders and Exporters Ltd with an intention to transfer the said amount into the bank account of M/s. Aishwarya Imports and Exports. Admittedly, these documents were not subjected to investigation and examined by expert to help that the amount disclosed in these documents were withdrawn with an intention to transfer it to his personal account. Moreover, these documents were marked subject to objection and proof of the documents as exhibits. Admittedly, the 17 C.C.No.9710/2009 Complainant/PW1 has not complied the objection raised on the marking of the documents and he did not chosen to prove the contents of the documents.
27. As I have discussed supra, no investigation had been taken placed till this day with respect to these documents by competent authorities and even no report has been given whether the said Sri. Prashanth had misappropriated the funds of this Complainant company and the amount disclosed in Ex.P.10 to Ex.P.16 documents are really withdrawn with a fraudulent intention to cheat this Complainant company for his personally purpose colluding with this Accused. As I have discussed supra, Ex.P.10 to Ex.P.16 documents were marked subject to objection and admissibility of the documents. Admittedly, the Complainant except producing and marking Ex.P.10 and 16 documents does not prove the contents of document by adducing cogent and convincing evidence before this court. Admittedly, Ex.P.10 to Ex.P.16 documents were not proved as required under law to be proved.
28. The Ex.P.10 to Ex.P.16 documents does not prove that the amount disclosed in the said documents are withdrawn by Sri. G. 18 C.C.No.9710/2009 Prashanth colluding with this Accused for their personal purpose with a fraudulent intention to misappropriate the funs. As I have discussed supra, these documents were not subjected for investigation and even no report has been filed by the instigation officer as the amount transferred to the name of M/s. Aishwarya Imports and Exports is for his personal purpose and he has really misappropriated the funds. Even according to PW1 the fraud was committed by one Sri. Prashanth at Hongkong and China and even transaction disclosed in Ex.P.10 to Ex.P.16 is related to Shenzhen City at China. PW1 in his cross-examination except stating that his company expenditure at Hongkong and China was looked after by his partner Sri. Krish and he was paying money for the day to day business expenditure of his company, has not chosen to produce any piece of documents before this court.
29. As I have discussed supra, this court is not having any jurisdiction to decide whether the said G. Prashanth colluding with this Accused has committed fraud and they misappropriated the amount of this Complainant amounting to 23,337-00 U.S. Dollars and therefore, this Accused is liable for punishment. Admittedly,, the Complainant except adducing the oral evidence that the said 19 C.C.No.9710/2009 Sri. Prashanth colluding with this Accused, has committed misappropriation of funds at his company, has not initiated any legal action against them either at Hongkong or at China and even at Bangalore.
30. Admittedly, the PW1 has not chosen to produce any piece of documents before this court to prove that he had initiated legal action against Sri. G. Prashanth and this Accused and during the investigation this Accused by admitting her liability and also by admitting the transfer of the amount into her company bank account and she admitting her liability to settle the entire claim on behalf of Sri. G. Prashanth had issued Ex.P.1 cheque. Even according to PW1 the Accused by admitting the liability of Sri. G. Prashanth and also admitting fraud committed by him has came forward to settle the entire matter by paying money and accordingly, she had issued Ex.P.1 cheque for Rs.13,93,513/-.
31. On the contrary, this fact was categorically denied by this Accused and denied that she by admitting her liability, had issued Ex.P.1 cheque. No doubt the Accused has admitted the fact that Ex.P.1 cheque is belong to her and even admitted her signature on 20 C.C.No.9710/2009 the Ex.P.1. On the contrary, she has categorically denied the issuance of cheque towards the repayment of the loan amount of Rs.2,50,000/- as well as an amount of Rs.11,43,513/-. Admittedly, PW1 in order to prove his case and to prove that this Accused colluding with Sri. G. Prashanth misappropriated the funds of his company and they illegally transferred the amount into their bank account, has not chosen to produce any piece of evidence before this court.
32. Moreover, the Complainant has failed to convince this court that why he has not taken cheque belong to Sri. Prashanth for misappropriation of the funds committed by him. Even according to Pw1 the said Sri. Prashanth had transferred the amount from the bank account of his company to the bank account of M/s. Aishwarya Imports and Exports from Shenzhen City at China. Admittedly, PW1 has not taken any endorsement from Sri. Prashanth wherein he by admitting his liability and also by admitting that he misappropriated the funds of this Complainant transferred the amount to the bank account of M/s. Aishwarya Imports and Exports and they are liable to repay the said amount. Admittedly, there is no evidence before this court to believe that 21 C.C.No.9710/2009 this Accused colluding with Sri. G. Prashanth misappropriated the funds of the Complainant company at Hongkong amounting to 23,337-00 U.S. Dollars and they in order to discharge their liability and this Accused by admitting her liability, had issued Ex.P.1 cheque.
33. As I have discussed supra, there is no evidence before this court to believe that while auditing the accounts of the Complainant they have noticed about the misappropriation of the funds made by the Sri. G. Prashanth colluding with this Accused. The PW1 has utterly failed to convince this court that he has no initiated any legal action either against this Sri. Prashanth or against this Accused for misappropriation of funds from his company. In such situation, the entire case of the PW1 that this Accused colluding with Sri. G. Prashanth misappropriated the funds of his company at Hongkong and they illegally transferred the amount into their bank account and towards the discharge of the said liability, the Accused by admitting her liability, had issued Ex.P.1 cheque and the same was bounced, cannot be acceptable and believable.
34. Moreover, PW1 in his cross-examination stated that he is not aware whether he had received any Electrical goods from Pulse 22 C.C.No.9710/2009 Tech Singapore Ltd. to his M.G. Traders and Exporters Ltd. through Airway bill. PW1 further admitted the suggestion that he had filed a similar type of four complaints against the father of the Sri. G. Prashanth by claiming the amount towards the misappropriating of funds made by Sri. G. Prashanth at Shenzhen City at China. He further admitted that before he filed the complaint against the father of Sri. Prashanth, the father of Sri. Prashanth had filed a complaint against him and one Sri. Venkatesh Naidu and Kushal on 11/12/2008 and the other case was registered in C.C. 5161/2010 for the offence punishable u/Sec.384, 341 and 506 of I.P.C. and in the said case he obtained bail from the court. He further admitted, the suggestion that said Sri. Gangadhar had also lodged a complaint before the Human Rights Commission against the police officer Sri. Vankatehs Naidu for forcefully taking his cheques.
35. PW1 except adducing the oral evidence that he had also lodged a police complaint acceptable this Accused and Sri. Prashanth for misappropriation of the funds form his company and illegally transferring the amount into their name, has not chosen to prove the same by adducing the documents evidence before this court. He admitted the First Information Report lodged by him 23 C.C.No.9710/2009 before Yeshwathpura Police on 13/12/2008 marked as Ex.D1 and Ex.D2. He further admitted the suggestion that in Ex.D2 First Information he has not disclosed that this Accused towards the misappropriation of funds committed by Sri. G. Pranshath by admitting her liability to pay the cheque, issued him a cheque.
36. He has categorically admitted that even in his notice issued as per Ex.P.4 he has not disclosed the fact that this Accused had issued Ex.P.1 cheque by admitting the liability of the fraud committed by Sri. G. Prashatnh at Shenzhen City at China for misappropriation of funds. Likewise, the PW1 except the adducing the oral evidence that this Accused was liable to pay a sum of Rs.11, 43,513/-and towards the misappropriated amount committed by Sri. G. Pranshanth, has not chosen to prove the same that he is entitle for exact this much amount from this Accused and Sri. Prashanth.
37. He further admitted that except Ex.P11 to Ex.P.16 documents he has no other documents to prove that Sri. Prashanth has transferred an amount from his business account to the account of M/s. Aishwarya Imports and Exports business. As I have discussed supra, the PW1 except producing and marking Ex.P.11 to 24 C.C.No.9710/2009 Ex.P.16 documents has not chosen to prove the contents of the documents and he has utterly failed to prove that Sri. G. Prashanth was misappropriated the funds disclosed in these documents and he colluding with this Accused was illegally transferred the said amount into his bank account with an intention to cheat this Complainant.
38. PW1 categorically admitted that there was no any business transaction in between his company i.e., M.G. Traders and Exporters Ltd to the company of this Accused M/s. Aishwarya Imports and Exports and there was no transaction in between these two companies. Though he denied the suggestion that the amount alleged to have been transferred by Sri. G. Prashanth is neither related to this Accused and nor she has instructed Sri. Prashanth to transfer the amount. On the contrary, admittedly, PW1 has not chosen to prove that with the collusion of this Accused Sri. Prashanth has illegally transferred the amount form the bank account of M.G. Traders and Exporters Ltd to the bank account of M/s. Aishwarya Imports and Exports.
39. PW1 in his cross-examination denied the suggestion that this Accused had given her duly signed blank cheque in favour of 25 C.C.No.9710/2009 her sister Smt. Manjula Rangamallaiah with respect to transaction took place between them security towards the transaction and he colluding with Smt. Manjula Rangamallaiah by misusing the cheque belong to this Accused, created and concocted the same as Ex.P.1 for Rs.13,93,513/- and filed this false complaint. Though PW1 in his cross-examination denied the entire other suggestions put to him and denied that he has misused the cheque belong to this Accused and created the same as Ex.P.1 with an intention to make unlawful gain and cause loss this Accused. On the contrary, PW1 has not chosen to prove that as on date of Ex.P.1 cheque there existing a legally recoverable debt or other liability on this Accused and this Accused by admitting her liability and also by admitting that she is liable to pay Rs.13,93,513/- had issued Ex.P.1 cheque and the same was bounced.
40. He denied the suggestion that the signature found on Ex.P.1 marked as Ex.P.1(a) is not that of this Accused and even he has not issued the cheque in his favour after writing all the contents of the cheque. PW1 further denied the suggestion that he colluding with Smt. Manjula forged the signature of the Accused on Ex.P.1 and presented the said cheque for encashment. On the contrary, admittedly, the initial burden is on this PW1 to prove that as on 26 C.C.No.9710/2009 date of Ex.P.1 cheque there existing a legally recoverable debt or other liability on this Accused and she by admitting her liability, had issued Ex.P.1 cheque and the same was bounced.
41. No doubt, the Complainant in order to corroborate his testimony and also to prove his case also examined one witness from his side as PW2 and even PW2 who is the Manger of M/s. M.G. Traders and Exporters Ltd field his affidavit before this court and deposed that he was working as a Manager M.G. Traders and Exporters Ltd since from 2003 and on 7/11/2008 the Accused along with another person came to discuss regarding the transfer of amount by the Sri. Prashanth and finally the Accused by admitting her liability, had issued a cheque bearing No.068354, dtd.7/11/2008 for Rs.13,93,513/- in favour of this Complainant in his presence and he witnessed the transaction.
42. On the contrary, the PW2 except adducing the oral evidence that the Accused was admitted his liability and she by admitting that Sri. G. Prashanth was committed misappropriation of funds at the Complainant's Company and she by taking responsibility to pay the said misappropriated funds had issued her cheque forRs.13,93,513/-, has not produced any documents before 27 C.C.No.9710/2009 this court to believe his testimony and to accept the case of the Complainant.
43. Likewise, the PW2 except adducing the oral evidence that in his presence the Accused has issued Ex.P.1 cheque and he witnessed the transaction has not chosen to produce documents before this court to prove the transaction and also to prove the issuance of cheque by this Accused in favour of this Complainant. In such situation, the oral evidence of PW2 is nowhere helpful to the case of the Complainant to prove his case and it is not corroborating with the testimony of PW1. The evidence of PW1 and PW2 is not sufficient and convincing to believe the case of the Complainant and to hold the Accused guilt for the offence punishable u/Sec. 138 of N.I. Act.
44. However, the Accused in order to rebut the case of the Complainant and to rebut the presumption available to this Complainant, got examined as DW1. She deposed that there was no any business transaction with this Complainant and even there was no any other loan transaction in between her with this Complainant. She deposed that the Complainant became close to her family and as he was also residing at Mysore and he was given a job of driving 28 C.C.No.9710/2009 of her family vehicle. She deposed at no any point of time she had borrowed any kind of loan from this Complainant and even she has no liability towards the Complainant to pay any amount.
45. She deposed that her elder sister Smt. Manjula had married to one Sri. Rangamallaiah and subsequently after marriage there was some disturbance in family. Therefore her sister had left the company of her husband, came out of her matrimonial house and therefore she started residing along with her at Mysore. She deposed that her sister Smt. Manjula is in need of financial assistance from the financer as such she had required her to give a cheque for the security to avail the loan from the financer. She deposed that she with an intention to help her Sister and to facilitate her to take loan, had issued her blank cheque in favour of her sister in the year 2007.
46. She deposed that her sister Smt. Manjula had an illicit relation with the Complainant and when she objected for the illicit relationship, she colluding with this Complainant with an intention to take revenge against her, misused her cheque given to her for the security to avail loan, misused the same and created the same as Ex.P.1 and filed this false complaint. She deposed that one Sri. 29 C.C.No.9710/2009 Prashanth S/o. Gangadhar is a Cricket Player and he was playing for various teams and even he was plating at Hongkong. She deposed that the Complainant to run Iron Ore at overseas requested the Sri. Prashanth to extend his help in running the business at China and the said Sri. Prashanth by accepting the proposal of the Complainant co-coperated the Complainant to open his office at China by appointing three employees among them Miss. Anisha T. from India.
47. She deposed that the Complainant had developed a misunderstanding with Sri. Prashanth. She deposed that Sri. Prashanth S/o. Gangadhar is his family friend and also partner to her firm and subsequently, he became son-in-law and he was started to run their own business in the name and style of M/s. Aishwarya Imports and Exports and he was getting customers from overseas and became the competitor to the business of this Complainant. The Complainant getting vengeance against Sri. Prashanth and he started making allegations against Sri. Prashanth colluding with the local police. She deposed that as the said Sri. Prashanth is a partner to her firm, the Complainant colluding with the police and some gunda elements fixed her along with Sri. Prashanth in a fictitious case by creating the documents. 30 C.C.No.9710/2009
48. She categorically deposed that she has not issued Ex.P.1 cheque to this Complainant towards the repayment of any kind of amount and even she has not at all borrowed any kind of loan much less amounting to Rs.2,50,000/- from this Complainant and even she has not admitted her liability to pay a sum of Rs.11, 43,513/- alleged to have been transferred by Sri. Prashanth into the account of the partnership firm and even she has not entitle for any kind of amount to this Complainant. She deposed that she has already filed a suit against this Complainant before the Civil Court in O.S.No.484/2010 for seeking return of her cheque and the said suit is still pending adjudication. She further deposed that she has also filed a private complaint against this Complainant and also against her sister Smt. Manjula in P.C.R.No.5826/2009 before the 7th Addl. C.M.M., Bangalore and event the said complaint is pending adjudication. She deposed that she is not liable to pay any kind of amount to this Complainant and this Complainant only with an intention to make an wrongful gain and to cause loss to her, filed this false complaint. DW1 prays to dismiss the complaint.
49. DW1 got produced the certified copy of the Order Sheet of P.C.R. 5826/2009 along with a complaint filed by her in P.C.R. 31 C.C.No.9710/2009 5826/2009 marked as Ex.D5 and Ex.D6 respectively. She got produced reply notice issued by her to this Complainant marked as Ex.D7. She got produced the copy of the charge sheet file in C.C.20082/2010 along with statement of Ms. Anisha marked as Ex.D8. She got produced the order sheet of C.C.No.5161/2010 marked as Ex.D9 along with order in H.R.C. No.4138/08 before the Human Rights Commission marked as Ex.9 and Ex.10 respectively.
50. The Complainant denied the testimony of DW1 and his learned Counsel subjected DW1 for cross-examination. Though much has been put to DW1 during her cross-examination by suggestion that she had borrowed a hand loan of Rs.2,50,000/- from this Complainant for the education purpose of her daughter and subsequently, she has admitted her liability to pay the amount misappropriated by Sri. G.Prashanth and illegal transfer into the Accused of M/s. Aishwarya Imports and Exports totally amounting to Rs.11, 43,513/ issued Ex.P.1 cheque for the total sum of Rs.13,93,513/- and she is liable to pay the cheque amount, which has been categorically denied by DW1 nothing has been elicited from her mouth to disbelieve her testimony or to discard her evidence.
32 C.C.No.9710/2009
51. DW1 in her cross-examination categorically stated that she is not aware whether any amount transferred into her c M/s. Aishwarya Imports and Exports by Sri. Prashanth as per Ex.P.9 to Ex.P.16 documents. Moreover, DW1 has categorically stated that she is no any relation with the transaction alleged to have been done by this Sri. Prashanth at M.G. Traders and Exporters Ltd and even her company M/s. Aishwarya Imports and Exports have no connection to the transaction done by Sri. Prashanth.
52. As I have discussed supra, the Complainant except suggestion that she was also liable to the transaction made by Sri. Prashanth from Hongkong and Shenzhen City at China to her company M/s. Aishwarya Imports and Exports, nothing has been elicited from the mouth of DW1 to believe the case of the Complainant and hold that the Accused colluding with Sri. Prashanth misappropriated the funds from the company of this Complainant M.G. Traders and Exporters Ltd.. DW1 in her cross- examination categorically denied the suggestion that she is liable to pay the cheque amount disclosed in Ex.P.1.
53. Moreover, the Accused in order to corroborate her testimony and to prove that she has no any business transaction 33 C.C.No.9710/2009 either with this Complainant or with his company got examined Sri. Prashanth S/o. Gangadhar as D.W.2.
54. D.W.2 deposed that he is one of the partners to the M/s. Aishwarya Imports and Exports, for which the Accused was also a partner. He further deposed that the Complainant has made false allegations against him that he was a employee at M.G. Traders and Exporters Ltd. and during his employment, he was misappropriated a sum of Rs.11, 43,513/- and transferred the said amount into the bank account of M/s. Aishwarya Imports and Exports. He deposed that he had maintained and handled the bank transaction as per the oral instructions given by this Complainant from time to time and all the transaction were maintained and operated pursuant to the request made by this Complainant and no independent decisions were taken by him for handling the bank account of this Complainant.
55. He has deposed that the Complainant himself was monitoring the account from Bangalore by internet on every transaction and there was no secret and separate transaction taken place without the consent of the Complainant. He deposed that he 34 C.C.No.9710/2009 has also taken the assistance of one Ms. Anisha T., who accompanied him on behalf of this Complainant and as such there was no facility with respect to currency either in terms of dollars or Chinese Rombo. He has categorically deposed that as per the request of the Complainant from time to time, he had operated the account and subsequently he came back to India and handed over all the work to Mss. Anisha T. and the same was done by the instance of the Complainant. He deposed that the Complainant with an intention to take revenge against him and this Complainant misused the cheque given by this Accused to her sister Smt. Manjula and colluding with Smt.Manjula, misused the cheque and created the same as Ex.P.1 and filed this false complaint.
56. He deposed that he has not made any misappropriation or illegal transfer of the amount from the Complainant company either to his personal account or to any other account without the consent and knowledge of the Complainant-. He deposed that neither this Accused nor himself are liable to pay any kind of amount to this Complainant . Even the Complainant subjected DW1 in cross-examination and he extensively cross-examined DW1 by suggestion that he has misappropriated the funds from the 35 C.C.No.9710/2009 Complainant's Company and he has illegally transferred the amount into the bank account of M/s. Aishwarya Imports and Exports colluding with this Accused, which as been categorically denied by the DW1, nothing has been elicited from his mouth to believe that he had misappropriated the funds amounting to Rs.11, 43,513/ and the same was transferred into the account M/s. Aishwarya Imports and Exports.
57. Moreover, As I have discussed supra, this court is not a proper jurisdictional court to hold that the DW2 had committed fraud or misappropriation of funds from the Complainant's Company and whether he is liable for punishment for fraud and misappropriation of funds. In such situation, holding the DW2 was committed misappropriation of funds of the Complainant's Company and this Accused by admitting her liability to pay the misappropriated funds, had issued Ex.P.1 cheque by including the loan amount borrowed by him for a total sum of Rs.13,93,513/-, cannot be acceptable and believable.
58. The Accused has also examined one witness Sri. Suraj Kumar who is none other than the son of the Accused as DW3. Even DW3 deposed that her mother Accused had given her cheque in 36 C.C.No.9710/2009 favour of aunt Smt. Manjula as she was financial crisis after she left her husband with an intention to avail loan from the financer as a security. He deposed that her aunt Smt. Manjula, by colluding with the Complainant, had developed illicit relation with this Complainant and by misusing the blank cheque of her mother, created the same as Ex.P.1 for Rs.13,93,513/- and filed this false complaint even though his mother is not liable to pay any king of amount to this Complainant. He deposed that the Complainant was working as a driver in his family and as such there was no any occasion for her mother to borrow loan from this Complainant much les amounting to Rs.2,50,000/-.
59. Even though Complainant subjected DW1 for cross- examination on the contrary, nothing has been elicited from his mouth to believe that Sri. Prashanth colluding with this Accused, misappropriated the funds amounting to Rs.11,43,513/ from the company of the Complainant and they illegally transferred the said amount into the bank account of M/s. Aishwarya Imports and Exports and they were liable to pay the said amount.
60. Likewise, the Complainant has failed to elicit any fruitful information from the mouth of DW3 to believe that his mother had 37 C.C.No.9710/2009 borrowed a hand loan of Rs.2,50,000/- from this Complainant and she was liable to pay the loan amount along with the amount misappropriated by Sri. Prashanth at Honkong and China. The Complainant has failed to elicit any fruitful information from the mouth of DW3 to believe his case that the Accused after admitting her liability to pay a sum of Rs.13,93,513/-, had issued Ex.P.1 cheque and the same was bounced.
61. Admittedly, in this case, the initial burden is on this Complainant to prove that DW2 had committed fraud and misappropriation of funds and this Accused by admitting her liability, had issued Ex.P.1 cheque towards discharge of the liability to the Complainant. The Complainant has utterly failed to discharge his initial burden by adducing cogent and convincing evidence before this court.
62. There is nothing on record to believe that the DW2 has committed fraud and misappropriation of funds by the Complainant's Company at Hongkong amounting to 23,337-00 U.S. Dollars and he is liable to pay the amount and this Accused by admitting her liability, had issued Ex.P.1 cheque and therefore she is liable for punishment for the offence punishable u/Sec. 138 of N.I. Act.
38 C.C.No.9710/2009
63. The dispute between the parties is in civil nature and he has to approach before civil court to get the remedy and to recover the damages for the misappropriation alleged to have been committed by Sri. Prashanth. The Complainant instead of approaching the Civil Court has approached this court for the offence punishable u/Sec. 138 of N.I. Act by praying to punish this Accused in accordance with law. The prayer sought by the Complainant before this court is not maintainable and it holds no merit.
64. The Complainant has utterly failed to prove financial transaction in between him with this Accused as on date of Ex.P.1 amounting to Rs.2,50,000/- and he has failed to prove that this Accused was liable to pay the loan amount, amounting to Rs.2,50,000/- in his favour. In such situation, the case of the Complainant that the Accused in order to discharge her legally recoverable debt had issued a cheque in his favour and therefore she is liable to pay the cheque amount, cannot be acceptable and it holds no merit.
65. The learned Counsel for the Complainant has vehemently argued that the Accused has admitted the Ex.P.1 39 C.C.No.9710/2009 cheque and also admitted her signature on the Ex.P.1 cheque and she admitted that the cheque was produced before this court by this Complainant and therefore, there is a presumption in favour of this Complainant u/Sec.139 of N.I. Act that the cheque has been issued towards discharge of debt or other liability and this Accused has to rebut the said presumption by adducing cogent and convincing evidence before this court but here the Accused has failed to rebut the presumption available to this Complainant to the satisfaction of the court and therefore, the Accused has to be found guilty is not convinced this court and it holds no merit.
66. The next arguments canvassed by the learned Counsel for the Complainant that this Complainant before filing of the complaint has followed all the procedures prescribed under law and this Accused even after receipt of Legal Notice has failed to make payment of the cheque amount, is also not convinced this court and it cannot be acceptable.
67. As I have discussed supra, in Ex.P.4 notice the Complainant has tot stated how this Accused is liable to pay the cheque amount and towards which of her liability she had issued Ex.P.1 cheque for Rs.13,93,513/-. Moreover, the Accused 40 C.C.No.9710/2009 immediately after receipt of the Legal Notice has sent her reply by denying the transaction and also by denying the issuance of cheque towards her liability. The Complainant has not denied the receipt of reply notice nor he has denied the contents of reply notice. In such situation, merely because the Complainant has issued the notice prior to filling of the Complainant u/Sec.138 (b) of N.I. Act. and the same was duly served on this Accused that itself will not become automatic that there was no any direct or indirect transaction in-between him with this Accused and this Accused is liable to pay the amount disclosed in Ex.P.1 cheque.
68. The arguments canvassed by the learned Counsel for the Complainant that this Accused by admitting the liability of the misappropriation of funds committed by Sri. Prashanth also by admitting the responsibility of transfer of the amount by Sri. Prashanth, had issued Ex.P.1 cheque and therefore she is liable to pay the cheque amount, is not convinced this court and it cannot be acceptable.
69. Admittedly, till this day neither the said Sri G. Prashanth nor this Accused had been convicted by any court of law for guilty 41 C.C.No.9710/2009 of fraud of funds of the Complainant and hold that they are responsible for payment of the cheque amount either to this Complainant or to his favour. In such situation, the arguments canvassed by the learned Counsel for the Complainant that the Accused by admitting the liability of Sri. G. Prashanth had issued Ex.P.1chq and therefore she is liable to pay the cheque amount and even the Complaint filed by the Complainant is very well maintainable before this court, cannot be acceptable and it holds no merit.
70. The judgment relied by the learned Counsel for the Complainant in support of his arguments reported in ILR 2006 KAR 1730 between Dr. B.V. Sampathkumar Vs. Dr. K.G.V. Lakshmi wherein it is held that;
" The dismissal of the complaint on the plea that it was issued only as security and hence no prosecution would lie is an untenable view. A cheque whether issued for the repayment of loan or as security makes little difference u/Sec. 138 of N.I. Act. In the event of dishonour, legal consequences are same without distinction. When once issuance of cheque is proves, a presumption u/Sec.139 of N.I. Act would arise with regard to consideration."42 C.C.No.9710/2009
2014 Crl. L.J. 2903 between P.J. Thomas Vs. Vijayakumari & Ors. wherein it is held that;
"Cheque issued by the Complainant to repay the amount to Complainant was dishonoured - It is difficult to believe that petitioner, a business man, would have left signed, blank cheque with another person so that the latter could fill up cheque according to his whims and fancies - Courts below found that the cheque was issued for the discharge of a legally enforceable debt or liability."
2012 (1) DCR 189 (Delhi High Court) between M/s. The Jammu and Kashmir Bank vs. Abhishek Mittal wherein it is held that;
"Plea of issuing blank cheque - Validity - held - A person issuing a blank cheque is supported to understand the consequence of doing so - He cannot escape his liability only on the ground that blank cheque has been given by him."
71. The law laid down in all these judgments are not applicable to the facts of the present case on hand and it is nowhere helpful to the case of the Complainant to hold the Accused guilty of the cheque amount.
72. Admittedly, in this case, the Accused neither admitted the issuance of cheque in favour of this Complainant nor she has admitted her liability to pay the cheque amount. The Accused even did not admitted the fact that she has given her blank cha in favour 43 C.C.No.9710/2009 of this Complainant . Admittedly, here in this case, the Accused has taken up the specific defence that she was given her duly signed blank cheque in favour of her sister Smt. Manjula and she in turn colluding with the Complainant, had illicit intimacy with this Complainant , misused her cheque and filed this false complaint. In such situation, the arguments canvassed by the learned Counsel for the Complainant cannot be acceptable and it holds no merit.
73. On the contrary, the Learned Counsel for the Accused has vehemently argued that there was no any direct or indirect financial transaction in between him with this Complainant or his company as on date of Ex.P.1 cheque and this Accused is not liable to pay the amount to this Complainant and the very complaint filed by the Complainant is not maintainable, is fully convinced this court.
74. The Learned Counsel for the Accused argued that the Accused need not prove his defence beyond all reasonable doubts. He argued that the Accused can very well prove her defence and discharge her burden and rebut the presumption available to this Complainant by preponderance of probabilities and even by cross- examining the PW1. He argued that the very complaint filed by the 44 C.C.No.9710/2009 Complainant before this court is not maintainable as the entire nature of the complaint is in a civil nature and he has approached the Civil Court to get remedy.
75. He argued that till this day no court of law has made liable this Accused to pay the amount alleged to have been misappropriated by Sri. Prashanth at Hongkong and China and found him guilt for fraud and misappropriation of funds and also illegal transfer of the funds from the company of the Complainant . He further argued that till this day no court of law convicted DW1 and 2 for misappropriation of funds either against this Complainant or his firm by holding that DW2 is liable to pay 23,337-00 U.S. Dollars to the Complainant and In such situation, this Accused by admitting the liability of her partner Sri. G. Prashanth, had issued Ex.P.1 cheque is not maintainable.
76. He argued that the Complainant has utterly failed to prove the loan transaction in-between him with this Accused amounting to Rs.2,50,000/- and this Complainant has not produced any piece of evidence before this court to prove that he had advanced a hand loan of Rs.2,50,000/- to this Accused and she had acknowledged the said amount. He argued that the Accused by 45 C.C.No.9710/2009 adducing oral and documentary evidence before this court has proved that the Complainant by taking influence of the police implicated this Accused in this case. He further argued that the Complainant has not produced any piece of documents before this court to prove that he is the sole proprietor of M/s. M.G. Traders and Exporters Ltd. and even has not produced any piece of documents before this court that this Accused was committed misappropriation of funds colluding with Sri. Pranshanth amounting to 23,337-00 U.S. Dollars at the time when he was working at Hongkong and China. He further argued that this Complainant has utterly failed to prove his case to the satisfaction of the court by adducing sufficient evidence before this court.
77. He further argued that the very complaint filed by the Complainant is not maintainable against this Accused. The arguments canvassed by the Learned Counsel for the Accused is fully convinced this court and therefore it is accepted. Likewise the judgement relied by the Learned Counsel for the Accused in support of his arguments reported in AIR 2008 (2) Supreme Court Cases(Cri)166 Krishna Janardhan Bhat V/S Dattatraya G.Hegde in Criminal Appeal No.518 of 2006, wherein it is held that; 46 C.C.No.9710/2009
"Negotiable Instruments Act, 1881-SECTION 139-Presumption under-Scope of- Held, S. 139 merely raises a presumption in favour of holder of cheque that the said cheque has been issued for discharge of any debt or other liability- Existence of legally recoverable debt is not a matter of presumption under S.139."
AIR 2010 Supreme court 1898 between Rangappa vs. Mohan wherein it is held that;
Negotiable Instruments Act,(26 of 1881), -
SECTION 138-Dishonour of cheque-On account of 'stop payment' instruction sent by accused to Bank in respect of post dated cheque-S. 138 is attracted-Insufficiency of funds in account, irrespective.
(B) Negotiable Instruments Act(26 of 1881), S.138-Existence of legally recoverable debt or liability-Is not matter of Presumption U/S 139.
2012 (1) Crimes 405 (Karnataka) between B. Girish and S.Ramaiah wherein it is held that;
"Even though the Accused has admitted his cheque and the signature thereon, when the Accused has denied the issuance of cheque in favour of this Complainant towards discharge of debt or other liability, Complainant has to establish his case and to establish the existence of debt or other liability. The presumption u/Sec.139 of N.I. Act is a rebuttable presumption. The Complainant has failed to establish the existence of any debt. In such situation, the presumption u/Sec.139 of N.I. Act would not extend to existence of debt or other liability.' 47 C.C.No.9710/2009 2013 (3) KCCR 1940 Karnatka High Court between Lakshmi Subramanya Vs. B.V. Nagesh wherein it is held that;
"Sections 138 and 139 of N.I. Act - presumption arising out of dishonour of cheque - rebuttal of - Standard of proof - is one of preponderance of probabilities."
2013 (1) Crimes 497 (Bom.) between Smt. Shobha Vs. Gajanan wherein it is held that;
"No documentary evidence was produced that Rs.1,00,000/- was paid in cash as loan - No entry was taken in accounts regarding that amount - Accused if probabilized defence, there was no reason to interfere.
2013 (3) Crimes 246 (SC) between Vijay Vs. Laxman and Anr. wherein it is held that;
"presumption u/Sec.139 of N.I. Act raised in favour of holder of cheque must be kept confined to matters covered thereby - presumption raised does not extend to the extent that cheque was not issued for discharge of any debt or liability which is not required to be proved by Complainant as this is essentially a question of fact and it is defence which has to prove that cheque was issued towards discharge of a lawful debt."
78. The law laid down in these judgments are applicable to the facts of the present case on hand and it is very much helpful to the defence takEn by the Accused. The arguments of the Learned Counsel for the Accused is that the Accused successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. 48 C.C.No.9710/2009 Act by adducing oral and documentary evidence before this court is fully convinced this court.
79. As I have discussed supra, the Complainant has utterly failed to prove his case and also prove that the Accused by admitting her liability and also by admitting she along with Sri. G. Prashanth, misappropriated the funds and they illegally transferred the amount into their bank account, had issued Ex.P.1 cheque to discharge her liability. In such situation, without any sufficient proof before this court, it is not possible to believe the case of the Complainant. The oral and documentary evidence before this court by the Complainant, is not convinced this court and it is not sufficient to hold the Accused guilt of the offence punishable u/Sec.138 of N.I. Act.
80. The entire burden is on this Complainant to bring home the guilt of the Accused beyond all reasonable doubts to the satisfaction of the court. Unless the Complainant is discharge his burden, burden will not shift on the Accused to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act Here in this case the Complainant except adduing the oral evidence that the Accused in order to discharge her liability and to repay the 49 C.C.No.9710/2009 loan amount, along with the misappropriated funds by Sri. G. Prashanth, had issued cheque for a sum of Rs.13,93,513/- has not chosen to prove the same by adducing the documentary evidence before this court. The Complainant has utterly failed to prove that the Accused has committed an offence punishable u/Sec. 138 of N.I. Act and therefore, she is liable for sentence. In such situation, the benefit of doubt goes in favour of this Accused. Hence, by taking into consideration the facts and circumstances and evidence available on record, I answer Point No.1 in the Negative.
81. Point No.2: In view of my findings on the above point and the reasons stated therein, I proceed to pass the following:
ORDER Acting U/s.255(1) of Cr.P.C. the accused is hereby acquitted for the offence punishable U/s.138 of NI Act.
The bail bond and surety bonds of the accused stands cancelled.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by him is verified and then pronounced by me in the Open Court on this the 4th day of March, 2015) (ISHRATH JAHAN ARA) XIX ADDL.CMM Bangalore 50 C.C.No.9710/2009 ANNEXURE:
Witnesses examined on behalf of the Complainant:
PW.1 Mr. Madappa Gopal P.W.2 Mr. Mahadev @ Appaji Krishna Mahale Witnesses examined on behalf of the Accused: D.W.1 Mrs. Anitha Srinivas D.W.2 Mr.Prashanth D.W.3 Mr. Suraj Kumar
Documents marked on behalf of the Complainant:
Ex.P.1 Cheque
Ex.P.1(a) Signature of the accused
Ex.P.2 Bank endorsement
Ex.P.3 Bank return memo
Ex.P.4 Copy of the legal notice
Ex.P.5 RPAD receipt
Ex.P.6 UCP receipt
Ex.P.7 RPAD Cover
Ex.P.8 Notice kept in the cover
Ex.P.9 Reply notice
Ex.P.9(a) Postal cover
Ex.P.10 to Ex.P.13 Three withdrawal slips
Ex.P.14 to Ex.P.16 Three statements of accounts
Ex.P.17 Complaint
Ex.P.18 Copy of the cheque
Ex.P.19 Bank statement
Ex.P.20 Bank extract
Documents marked on behalf of the Accused:
Ex.D1 First Information Report
Ex.D2 Complaint filed before Yeshwanthpura Police
Station
Ex.D3 Copy of written statement filed in Civil Court in
O.S.No.484/2010
Ex.D4 Copy of plaint in O.S. 484/2010
Ex.D5 Copy of Order Sheet of P.C.R. 5826/2009
Ex.D6 Complaint registered in P.C.R. 5826/2009
Ex.D7 Reply notice
51 C.C.No.9710/2009
Ex.D8 Copy of the charge sheet
Ex.D9 Order sheet of C.C.No.5161/2010
Ex.D10 Copy of the Order passed in H.R.C. No.4138/08 in the Human Rights Commission XIX ACMM, B'lore.52 C.C.No.9710/2009