Bangalore District Court
And Sought Loan To Start The Business Of ... vs Committed An Offence Punishable ... on 12 July, 2021
1 CC.19077/2016 (J)
IN THE COURT OF THE XV ADDL CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY.
Dated this the 12th day of July2021
Present: Lokesh Dhanapal Havale, BA.LL.B.,
XV Addl.C.M.M., Bangalore.
Judgment U/s.355 of the Cr.P.C. 1973.
1.Sl.No.of the case CC.No.19077/2016
2.Name of the Complainant: Smt.A.Parvathamma,
W/o.Sri.B.Rudrappa,
Aged about 67 years,
R/at No.1, 2nd Floor,
Darshan Villa, 2nd Cross,
Nehru Nagar, Seshadripuram,
BENGALURU560 020.
3.Name of the accused: M/s.Sri Sigandooreshwari
Amma Minerals,
Rep. by its Proprietor
Smt.Ganga Nataraj,
W/o.R.Nataraj:
Aged about 44 years,
No.15/1A, Sidedahalli Village,
Hesaraghatta Main Road,
Bengaluru North Taluk,
KARNATAKA - 560 073.
Also at:
Smt.Ganga Nataraj,
D/o.Sri.C.Basappa,
Grand D/o.Late Chikkagubb
anna, Matkur Village,
Kakolu Post,
Hesaraghatta Hobli,
Bengaluru North Taluk,
KARNATAKA - 560 089.
2 CC.19077/2016 (J)
4.The offence complained of : U/s.138 of Negotiable Instruments
Act.
5.Plea of the accused: Pleaded not guilty.
6.Final Order: Acting U/s.255(1) Cr.P.C., accused is
Acquitted.
7.Date of final Order 12th day of July2021.
***
This complaint is filed U/Sec.200 of Cr.P.C., by the complainant
against the accused for the offence punishable U/Sec.138 of the
Negotiable Instruments Act, 1881.
2. The facts the complaint in brief are as under:
The complainant is the Managing Director of Sri Sigandooreshwari
Amma Associates, having its office at No.15/1A, Sidedahalli,
Hesaraghatta Road, Bengaluru73. The complainant is having her
source of income by way of commission received by consultancy
services and by way of her Real Estate Business. The accused is the
daughterinlaw of the complainant. The accused approached the
complainant and sought loan to start the business of manufacture of
packaged drinking water. The accused had selected place at
Sy.No.15/1A Sidedahalli village, Hesaraghatta Main Road, Bengaluru
73 to start her business. Firstly on 8.10.2012 the complainant lent an
amount of Rs.5 lakhs to the accused to help her to get premises on
lease basis to start the business. Secondly on 23.3.2013 she lent an
amount of Rs.5 lakhs to the accused to purchase machinery and lastly
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on 30.7.2014 she lent an amount of Rs.5 lakhs to the accused to get
BIS certification marks licence concern to her business. She lent an
amount of Rs.15 lakhs in total. The accused towards repayment of said
loan amount issued post dated cheque Nos.428638 for Rs.5 lakhs,
No.428640 for Rs.5 lakhs and No.428641 for Rs.5 lakhs, all dated
17.06.2016 are drawn on Corporation Bank, Chikkabanavara Branch,
Bengaluru70. The complainant presented the cheques for encashment
on 17.6.2016 through her Banker by name Karnataka Bank Ltd.,
Nehrunagar Branch, Seshadripuram, Bengaluru20. All the three
cheques were returned unpaid with endorsement "Account Closed" on
18.6.2016. Thereafter the legal notice dated 23.6.2016 was issued by
the complainant through her counsel by way of registered post. The
notice was duly served on the accused and the accused issued reply
notice dated 11.7.2016. Even after service of notice, the accused failed
to pay the cheque amount within stipulated period and thereby the
accused committed an offence punishable U/s.138 of the N.I.Act.
Complainant prayed to punish the accused and compensate her.
3. After the institution of the complaint it has been registered
it in PCR No.7532/2016 and on the basis of materials cognizance of the
offence has taken against the accused and registered the criminal case
against her and issued summons to the accused. In response to the
summons the accused put her appearance through her learned counsel
and got enlarged on bail. The prosecution papers were supplied to the
accused and her plea was recorded. The accused denied the plea and
claimed for trial.
4 CC.19077/2016 (J)
4. During trial the complainant herself got examined as PW1
and also got examined Bank Manager as PW2 on her behalf. She got
marked Ex.P.1 to P.12. On the other hand, the accused examined
herself as DW1 and she got marked Ex.D.1 to D.8.
5. I have heard the arguments of both the parties, perused
the written arguments filed by the counsel for the accused and the
entire materials placed on record.
6. The counsel for the complainant argued that the accused is
the proprietary concern represented by Smt.Ganga Nataraj, who is the
daughterinlaw of the complainant. The complainant lent loan of Rs.15
lakhs in three installments i.e., on 08.10.2012, 23.03.2013 and
30.07.2014. In order to discharge her liability the accused issued
cheques at Ex.P.1, 3 and P.5. They were presented for encashment and
they were returned with endorsement "Account Closed". Ex.P.2, 4 and
P.6 are the Bank endorsements. Ex.P.7 is the notice issued by the
complainant to the accused demanding the repayment of the loan.
Ex.P.8 is the reply notice. In reply notice, the accused No.2 admitted
the existence of Sigandooreshwari Amma Associates and that the
complainant made crores of rupees in her business by selling
properties. It shows that she has financial capacity to lend. Nothing
worth was elicited in the cross examination of PW.1 except minor
inconsistencies. The cheques and signatures have been admitted by the
accused and the presumption U/s 139 of NI Act arises in favour of the
complainant and the burden is on the accused to rebut the
presumption. The defences that the amount of Rs.10 lakhs was paid by
father of the accused, that the husband of the accused was conducting
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the business and that there was a disturbance in the family as the
husband of accused got married second time are all false. The accused
left the house of her husband for the sake of property. The false suits
have been filed against complainant and her son and later withdrawn.
Similarly false case in CC.No.4823/2016 was filed by father of the
accused for dishonour of cheque of amount of Rs.75 lakhs.
He relied on the following citations of the Hon'ble Supreme Court
and Hon'ble High Courts.
i. The judgment in the case of NEPC Micron Ltd Vs.
Magma Leasing Ltd reported in 1999 STPL 4853 SC and
the judgment in the case of Yugalkishore Maniklal Bhattad
Vs. Shrikrishna Gupta reported in 2012 STPL 11905
Bombay, wherein it was held that the dishonour of cheques
for the reason of closure of accounts amounts to returning of
cheques for insufficiency of funds.
ii. The judgment in the case of Kishan Rao Vs.
Shankar Gouda reported in (2018) 8 SCC 165, wherein it
was held that the mere denial of debt is not sufficient to acquit
the accused in cheque bounce case.
iii. The judgment in the case of Bir Singh Vs. Mukesh
Kumar reported in 2019 STPL 713 SC, wherein it was held
that subsequent filling of an unfilled signed cheque is not an
alteration.
6 CC.19077/2016 (J)
iv. The judgment in the case of Rangappa Vs. Mohan
reported in (2010) 11 SCC 1411, wherein it was held that
the test of proportionality must guide in determining whether
the presumption under Section 139 of The NI Act was rebutted
or not.
v. The judgment in the case of Smt. Ragini Gupta Vs.
Piyush Dutt Sharma Gwaliar of MP High Court CRR
5263/2018, wherein it was held that the non filing of IT
Returns does not mean that the complainant had no source of
income.
vi. The judgment in the case of Uttam Ram
Vs.Devinder Singh Hudan and another reported in (2019
10 SCC 287, wherein it was held that the presumption
mandated by Section 139 of N.I.Act does not indeed include
the existence of legally enforceable debt or liability but bare
denial of passing of consideration and existence of debt, is not
enough to rebut the presumption and something probable has
to be brought on record for getting the burden of proof shifted
to the complainant. The facts and circumstances should be
brought on record to prove the probable defence and the
circumstantial evidence must be compelling. It was also held
that the complainant need not prove the debt as if before the
Civil Court wherein plaintiff is required to prove his claim on
evidence to be laid in support of his claim for recovery of the
amount due.
7 CC.19077/2016 (J)
7. On the other hand the counsel for the accused filed written
arguments and also orally argued that the presumptions U/s.118 and
139 of N.I.Act are rebuttable. It depends on facts and circumstances of
each case. The standard of proof to rebut the presumption is one of the
preponderance of probabilities. The accused can make use of facts
elicited in the crossexamination of the complainant and referring to
the circumstances, which make the defence of the accused probable
and creates doubt on the case of the complainant. The family of the
complainant and accused is the Hindu Joint Family. In such cases
usually the husband runs business in the name of wife. It is the
understanding between the members of the family. The relationship is
not disputed. The complainant alleged to have assisted the accused to
start the business on three occasions by giving Rs.5 lakh each time.
There is no document in support of the payment made by the
complainant. The father of the accused is the landlord and she took
money from her father to start the business. The accused resided for 22
years along with her husband, who is son of the complainant and their
family. Admittedly their relationship was cordial. The husband of the
accused married second time in 2003 but the accused came to know
about the same in the year 2015. The family of the complainant used to
take financial help from the father of the accused. The complainant and
her son issued cheque for Rs.75 lakhs to the father of accused and
CC.No.4823/2016 is pending before Hon'ble CJM, Bengaluru Rural
District. When there was quarrel in respect of the second marriage of
the husband of the accused, they sent the accused to her parental
house. The accused used to give blank signed cheques for the purpose
of business and the said cheques were misused by the complainant and
her son. It is the case of the complainant that the accused issued post
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dated cheques but the repayment was demanded before the expiry of
the post date mentioned in the cheque. The signatures and the writing
in the cheques is in different inks and made at different time. The story
of the complainant changes from time to time. The control of all the
family businesses was with accused No.1 and the complainant. There
was no transaction and the accused had not taken any amount from the
complainant as loan. This case and the case in CC.No.19078/2016 have
been filed by misusing the blank signed cheques of accused left by her
in the matrimonial house, which were signed by her only for the
business purpose.
He relied on the following citations of Hon'ble Supreme Court and
Hon'ble High Court.
i. The judgment in the case of the case of Saftarsab
Vs.Allaiah @ Allappa reported in ILR 2005 KAR 2911,
wherein it was held that the execution of instrument must be
proved before the presumption U/s.118 of N.I.Act is drawn.
ii. The judgment in the case of the case of
M.S.Narayan Menon @ Mani Vs. State of Kerala and
others reported in (2006) 6 SCC 39, wherein it was held
that the initial burden on proof is on the accused to rebut the
presumptions U/s.118 and Section 139 of N.I.Act by raising
probable defence and if he discharges the said burden, the onus
thereafter shifts on the complainant to prove his case. The
burden of proof on the accused is not heavy. He need not
disprove the prosecution case in its entirety and he can
9 CC.19077/2016 (J)
discharge burden on the basis of preponderance of
probabilities to direct or circumstantial evidence and he can
also rely on evidence adduced by the complainant. It was also
held that with holding of relevant evidence leads to drawing
adverse inference against the complainant that he has not
produced the document deliberately and if the same was
produced, it might have gone unfavourable to him.
iii. The judgment in the case of the case of
M.Senguttuvan Vs.Mahadevaswamy reported in ILR 2007
KAR 2709, wherein it was held that the presumption
U/s.139 of N.I.Act need not be rebutted only by defence
evidence and the said presumption can be rebutted even on the
basis of the facts elicited in the crossexamination of the
complainant.
iv. The judgment in the case of the case of Krishna
Janardhan Bhat Vs.Dattatreya G.Hegde reported in 2008
Crl.L.J. 1172 SC, wherein it was held that the accused not
required to step into witness box to prove his defence. He may
discharge his burden on the basis of materials already brought
on record. It was also held that whereas prosecution must
prove the guilt of the accused beyond all reasonable doubt, the
standard of proof so as to prove a defence on the part of
accused is preponderance of probabilities. Inference of
preponderance of probabilities can be drawn not only from the
materials brought on record by the parties but also by
reference to the circumstances upon which he relies.
10 CC.19077/2016 (J)
v. The judgment in the case of the case of
B.Indramma Vs.Sri Eshwar reported in ILR 2009 KAR
2331, wherein it was held that when the very factum of
delivery of cheque in question by the accused to the
complainant and its receipt by the complainant from the
accused itself is seriously disputed by the accused, his
admission in his evidence that the cheque in question bears his
signature would not be sufficient proof of the fact that he
delivered the said cheque to the complainant and the latter
received it from the former so as to raise the presumption
U/s.139 of N.I.Act.
vi. The judgment in the case of the case of
A.Vishwanath Pai Vs.Vivekanand S. Bhat reported in ILR
2009 KAR 172, wherein it was held that the existence of
legally recoverable debt is not a matter of presumption
U/s.139 of N.I.Act as Section 139 of N.I.Act merely raises the
presumption in favour of the complainant that the cheque was
issued for discharge of any debt or other liability.
vii. The judgment in the case of the case of
H.Manjunath Vs.A.M.Basavaraju reported in ILR 2014
KAR 6572, wherein it was held that when the complaint
lacks statements as to when the amount was actually given to
the accused; merely the date of issuance of cheque was
mentioned without material particulars of transaction; the
dispute raised in respect of entries made in the cheque are not
11 CC.19077/2016 (J)
in his handwriting and it is not the case of complainant that
the cheque was issued in blank and filled later with consent of
the accused, the version of the complainant could not be
accepted if the cheque makes it manifest that except signature
all other entries are in different handwriting, different ink and
undoubtedly made at different time.
8. The points that arise for my consideration are as follows:
1. Whether the complainant proves that the
accused being proprietor of Sigandooreshwari
Amma Minerals issued three cheques dated
17.06.2016 are drawn on Corporation Bank,
Chikkabanavara Branch, Bengaluru70 for Rs.5
lakhs each towards the discharge of legally
enforceable debt/liability of Rs.15 lakhs and on
presentation the cheques for encashment, they
were returned unpaid with an endorsement
"Account Closed" and even after service of notice,
she failed to repay the amount and thereby
accused committed an offence punishable
U/Sec.138 of N.I. Act, 1881 ?
2. Whether the accused rebuts the presumption
U/s.139 of N.I.Act?
3. What order?
9. My answers on the above points for consideration are as under.
Point No.1 : In the Negative
Point No.2 : In the Affirmative
Point No.3 : As per final order for the following:
12 CC.19077/2016 (J)
REASONS
10. Point No.1 and 2 : These points are taken together to
avoid repetition of facts and evidence. The provision U/s. 118(a) and
139 of the Act, 1881 reads as under :
"118. Presumptions as to negotiable
instruments. - Until the contrary is proved, the
following presumptions shall be made:
(a) of consideration - that every
negotiable instrument was made or drawn for
consideration, and that every such instrument,
when it has been accepted, indorsed, negotiated
or transferred, was accepted, indorsed,
negotiated or transferred for consideration
"139. Presumption in favour of holder. It
shall be presumed, unless the contrary is proved,
that the holder of a cheque received the cheque
of the nature referred to in section 138 for the
discharge, in whole or in part, of any debt or
other liability."
11. On plain perusal of the provision of Section 118(a) and
139 of the N.I.Act., as extracted herein above, it can be seen that
initially the presumptions constituted under those two provisions are
favours the complainant. However, it is open to an accused to raise a
defence to rebut the statutory presumptions. An accused can raise a
defence wherein the existence of legally enforceable debt or liability
can be contested.
13 CC.19077/2016 (J)
12. It is also well established that, an accused for discharging
the burden of proof placed upon him under a statute need not examine
himself. He may discharge his burden on the basis of the materials
already brought on record. An accused has constitutional rights to
maintain silence. The standard of proof on part of the accused and that
of the prosecution in a criminal case is different. The prosecution must
prove the guilt of an accused beyond all reasonable doubt, the standard
of proof so as to prove a defence on the part of an accused is
preponderance of probabilities.
13. Under the light of the provisions extracted herein above, I
have gone through the complaint and the evidence placed on record by
the parties to the complaint. In the case on hand the complainant has
been examined as PW1. She has filed affidavit on oath in lieu of
examinationinchief and she deposed about the averments made in the
complaint. PW1 also got examined the Bank Manager as PW2. She
also got marked Ex.P.1 to P.12. I have perused the Ex.P.1 to P.12. The
Ex.P.1, P.3 and P.5 are the three cheques dated 17.6.2016 for Rs.5
lakhs each and Ex.P.1(a), P.3(a) and P.5(a) are the accused signatures
on three cheques. Ex.P.2, P.4 and P.6 are the three Bank endorsements
dated 18.6.2016. Ex.P.7 is the office copy of the legal notice dated
23.6.2016 issued by the complainant through her counsel demanding
the payment. Ex.P.8 is the reply notice dated 11.7.2016 issued by the
accused. Ex.P.9 and P.10 are the two postal receipts for having sent the
statutory notice to the accused at her two different addresses and
Ex.P.11 and P.12 are the two postal acknowledgements for having duly
served the statutory notice to the accused at her two different
addresses.
14 CC.19077/2016 (J)
14. On perusal of the exhibits, it is clear that the cheque at
Ex.P.1,3 and 5 dated 17.06.2016 were presented through the Bank
within its validity for encashment and the Bank issued endorsement as
per Ex.P.2, 4 amd 6 on 18.06.2016 with shara "Account Closed". The
ho'ble Apex Court has held in many decisions that the dishonour of
cheques for the reason of closure of accounts amounts to returning of
cheques for insufficiency of funds. The complainant issued statutory
notice dated 23.06.2016 as per Ex.P.7 within time from the dates of
receipt of Bank Memos. The notice was served on the accused as per
ExP.11 and 12. Accused issued reply notice on 11.07.2016 as per
Ex.P.8. The service of notice has not been denied. The complaint has
been filed on 19.07.2016, which is within limitation. Therefore, the
documents on record clearly show that the complainant has complied
the ingredients of Section 138(a) to (c) of the N.I.Act. The accused
admitted signatures on the cheques but she denied the issuance of
cheques at Ex.P.1, 3 and 5 in favour of the complainant. It is the
specific defence of the accused that the blank signed cheques were
misused by the complainant in collusion with her son. The admission of
signature in cheque at Ex.P.1, 3 and 5 by the accused leads to draw the
presumptions U/s.118 and 139 of the N.I.Act in favour of the
complainant. The presumptions are rebuttable and the burden is on the
accused to rebut the presumptions. The presumption that arises under
the aforesaid section is in respect of the fact that the cheque was issued
for legally enforceable debt/ liability and the actual existence of debt or
liability can be contested. The burden is on the accused to rebut the
presumption by raising probable defences and proving it relying on the
evidence of the complainant or by leading direct evidence.
15 CC.19077/2016 (J)
15. The complainant also got examined witness by name
S.Prasad, S/o.H.S.Swamy Das, Senior Manager, Corporation Bank,
Chikkabanavar branch, Bengaluru as PW2. He deposed that
Sigandooreshwari Amma Minerals has current account bearing
No.214701601000135 in their Bank. The account was opened on
11.12.2012. The account was closed on 16.05.2016. The application
was filed to close the account and the reason assigned was personal.
The account holder obtained the cheque book and debit card pertaining
to the said account. It has SMS alert facility. The Bank has provided
100 cheque books containing 100 cheque leaves to the account holder.
He did not know how many cheques have been used by proprietary
concern. The account holder told at the time of closing the account that
the remaining cheque leaves were lost. He was not cross examined by
the counsel for the accused.
16. It is the defence of the accused that she did not take any
financial assistance from the complainant and she did not issue any
cheques in favour of the complainant. She is the daughterinlaw of the
complainant. She married the son of the complainant on 29.05.1994.
They have a daughter by name Pooja Nataraja. She has been made as
partner in various businesses started by complainant, her husband and
her son. They made her to bring money from her parental house to set
up the businesses and to meet the losses incurred in the businesses.
They also made her to sell her jeweleries. The business under the name
and style M/s.Sri Sigandooreshwari Amma Minerals was started with
the help of her father. He invested the entire amount for setting up the
plant including availing premises on lease, purchasing machineries and
raw materials etc. She was SSLC pass out and her husband is qualified
16 CC.19077/2016 (J)
Engineer, who used to manage the financial and manufacturing
aspects. He used to take blank signed cheques, which were required for
the business purpose. They have good relationship till she was forced to
leave the matrimonial house. At that time her husband Nataraj was in
possession of several signed blank cheques. They had very good
relationship and during the said period, the complainant made her to
sign several cheques, papers and documents, which were required for
the business purpose and made her liable for the loss incurred. They
even made her liable for the loss incurred. The complainant also made
her to execute mortgage deed dated 26.11.2014 in respect of her 16
guntas land situated in Sy.No.115/4 of Muthkur village stating that it
was only for Income Tax purpose. Though, it is mentioned in the
mortgage deed that an amount of Rs.3 lakhs was given to the accused,
but there was no transaction as stated in that mortgage deed. She was
involved in the businesses for name sake and the entire financial
transactions and decisions were taken by complainant and her son.
The complainant and accused No.1 used to ask her to bring money
from parental house. Her father helped the complainant financially on
various occasions. Thereafter her father refused to give any financial
assistance. The complainant was not in good terms with her for not
bringing money from her parental house. The complainant, her
husband and accused No.1 incurred heavy losses in the business. They
started to illtreat the complainant and finally made her to leave the
matrimonial house. She has been residing in the house provided by her
father in the Muthkur village. They incurred heavy losses in the
business during the year 2008 and agreed to sell their property in
favour of her father, even though her father had no necessity to
purchase the property. He agreed to purchase to help the complainant
17 CC.19077/2016 (J)
and her son. The agreement of sale was entered between them on
14.06.2008 in respect of land to an extent of 30 guntas in Survey
No.89/1 and the land to an extent of 30 guntas in Sy.No.89/2 situated
in Muthkur village, Hesaraghatta Hobli, Bengaluru North Taluk for sale
consideration of Rs.30 lakhs and on the date of agreement Rs.25 lakhs
was paid by way of cash as advance amount. Again on 24.06.2008 her
father entered into agreement of sale with Mr.Nataraj in respect of six
guntas in Sy.No.91/2 and 35 guntas in Sy.No.90 and 22 guntas in
Sy.No.88/1 for sale consideration of Rs.30 lakhs and on the date of
agreement Rs.20 lakhs was paid by cash as advance amount.
Thereafter the possession of the properties were handed over to her
father but they did not execute the sale deeds in favour of her father.
As the price of the properties were increased, the complainant and her
son issued cheque for Rs.75 lakhs in favour of her father towards
repayment of advance money and loss incurred by him. The said
cheque was dishonored and her father issued legal notice to
complainant and her son. They are upset and angry for having issued
the legal notice by her father. To counter blast the said case, the
complainant misused blank signed cheques of accused, which were
taken for the business purpose, when they were in good terms. The
complainant misused the cheques in collusion with her son Mr. Nataraj.
She also filed complaint against the complainant on 04.04.2016 before
Soladevanahalli Police Station regarding illtreatment and dowry
harassment by the complainant.
17. In order to prove her defence, the accused led defence
evidence. She got examined herself as DW1 and she got marked
Ex.D.1 to D.8. On perusal of Ex.D.1, it discloses that it is the bank
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account statement of M/s.Sri Sigandooreshwari Amma Minerals from
11.02.2013 to 12.02.2014. During that period various amounts have
been transferred to Shiva Motors and Nataraj, who is husband of the
accused and various amounts have been received from Shiva Motors.
Ex.D.2 is the certified copy of the order sheet in CC.No.19078/2016. As
per the order dated 13.07.2017, the Court ordered the complainant to
produce MOU dated 15.05.2013. She deliberately with held the
document, which means that if the said document is produced it would
be unfavourable to her. Ex.D.3 is the certified copy of the evidence of
complainant in CC.No.19078/2016. Ex.D.8 is the certified copy of the
further evidence of complainant in CC.No.19078/2016. Ex.D.4 to D.7
are the certified copies of the vakalaths filed by the complainant and
her son by name Nataraj in O.S.No.1132/2016, 1134/2016 and
CC.No.4823/2016, which were filed by the father of the accused
against them. On perusal of the documentary evidence of DW.1, it is
clear that there is no document on record to show that the father of the
accused assisted her by giving Rs.10 lakhs to start the business under
the name and style M/s. Sigandooreshwari Amma Minerals.
18. In order to disprove the case of the complainant, the
counsel for the accused cross examined PW.1 in length. It was elicited
in the crossexamination of PW1 that there are no documents in
respect of Sigandooreshwari Amma Associates. She has been doing real
estate business and out of the income of the said business she had
given loan amount to the accused. She denied that Sigandooreshwari
Amma Associates is not existence and she is deposing falsely. The
existence of the Sri.Sigandooreshwari Amma Associates and income
from the same was challenged and the counsel for the accused cross
19 CC.19077/2016 (J)
examined about the same. No documents were produced by the
complainant in respect of its existence, its business details and its
income. There is nothing on record to show that the complainant is
financially sound. Even though it is considered that the complainant is
financially sound, it is to be borne in mind that having financial
capacity to lend the loan and actually lending the loan are different
aspects. The accused can always contest the actual existence of debt or
liability by raising probable defence and proving the same either by
leading direct evidence or relying on the evidence of the complainant.
It was elicited in the cross examination of PW.1 that the amount of Rs.5
lakhs given to the accused on 08.01.2012 and Rs.5 lakhs on 23.03.2013
for the business purpose was with her in the house and it was the
amount received from the real estate business. She did not take any
other documents except the cheques. The amount of Rs.5 lakhs given to
the accused on 30.07.2014 was the amount received from pledging the
golden ornaments. She did not have any documents for having pledged
the golden ornaments. This shows that there is no document to show
that the complainant had so much of amount at the relevant point in
time. Further as per ExD.3 and 8, which are the certified copies of the
evidence in CC.No.19078/2016, which is another case filed by the
complainant against the accused herein for dishonour of cheques
amounting to Rs.41 lakhs, it was brought on record in that case that
the complainant paid totally Rs.80 lakhs in the year 2013. She stated
that she had taken money from others to pay the accused, apart from
her own earnings. She has no documents to show that she borrowed
loan from others. This shows that though she appears to be financially
sound, she did not have the alleged amount at relevant point in time
and she actually lent the amount to the accused.
20 CC.19077/2016 (J)
19. The counsel for the accused cross examined PW.1 on the
aspect of family disputes and difference of opinion between them. PW.1
admitted that the father of the accused filed case in CC.No.4823/16
before Hon'ble CJM, Bengaluru Rural District against her and accused
No.1 for the offence punishable U/s.138 of N.I.Act for cheque amount
of Rs.75 lakhs and they engaged same Advocate to defend their case.
She also admitted that the father of accused No.2 filed O.S.No.1132/16
before Hon'ble Additional Civil Judge, Rural District against her and
O.S.No.1134/16 against the accused No.1 and they both engaged one
Advocate to defend their suits. The Advocate representing her in the
civil case is also representing her in this case. It was elicited that the
accused No.1 was residing with her and herself and husband together
used to bring the accused No.1 to the Court. This aspect is also
supported by the documentary evidence adduced by the accused as per
ExD.3 to 8. This makes it clear that there are cases filed by the father of
the accused on complainant and her son Nataraj. The fact that they
appointed same advocate; that they are residing together; the
complainant and her husband were looking after Nataraj and that the
accused was living separately from the matrimonial house show that
there is collusion between the complainant and her son.
20. It was further elicited in the cross examination of PW.1.
that the accused is her daughterinlaw. After marriage of the accused
with her son Nataraj, they were living together happily. It shows that
there was understanding between the family members. Moreover it is
clearly admitted by the complainant that her son was Engineer and he
has technical knowledge to run the business. Later herself and her son
were running the M/s.Sigandooreshwari Amma Minerals. The accused
21 CC.19077/2016 (J)
stated that she is SSLC pass out and it was not disputed. Further as per
ExD.3 and 8, it was brought on record in the said case that the M/s.
Shiva Motors was being run by the complainant and her son Nataraj. It
was elicited in this case from the mouth of PW.1 that herself, her son,
daughterinlaw, who is accused herein, and two others started firm by
name SS Associates. Later SS Associates, Shiva Motors and Shakthi
Motors together entered into MOU dated 15.05.2013. The Original
MOU might be with her son. She had seen it. She invested Rs.30 lakhs
in Shiva Motors and after the deduction of tax the SS Associates would
be entitled to 25% profits. When she was asked that as per 8(f) clause
in the MOU, the decision taken by her will be final, she answered that
she did not know. She denied that the Proprietary concern was under
her control and she used to take signatures of the accused on the blank
cheques for business purpose. As per ExD.2, the complainant was
directed to produce the said MOU dated 15.05.2013 in
CC.No.19078/2016, but it was not produced by the complainant. It
shows that she deliberately with held the document. Therefore adverse
inference can be drawn that it is unfavourable to her. It shows the
conduct of the complainant and that the MOU if produced might have
disclosed the fact that she had control over the affairs of M/s.Shiva
Motors. As per ExD.1, there were many financial transactions in
thousands and in lakhs between the M/s.Sigandooreshwari Amma
Minerals and M/s. Shiva Motors and also with individual account of
Nataraj. This shows that M/s.Sigandooreshwari Amma Minerals was
being run by Nataraj, who is qualified engineer. At this point of time
the argument canvassed by the counsel for accused that normally in
Hindu Joint Family, if several businesses are owned by it, though the
business might have been in the name of wife, it was actually run by
22 CC.19077/2016 (J)
the husband appears to be probable. All these aspects point towards the
fact that the complainant and her son were running the proprietary
concern and the accused has no active involvement in it.
21. The counsel for the accused cross examined PW.1 on the
aspect of issuance of cheques. She wrote the name on the cheques at
Ex.P.1, 3 and 5 and rest of the contents were written by her son. On
perusal of ExP.1, 3 and 5, it clearly appears that i. the name of the
complainant and date, ii. the amount in words and figure, iii. the
signature of accused are all in different inks. As the different inks have
been used to write them and therefore undoubtedly they were written
at different points of time. Further the complainant has not specifically
mentioned as to when the cheques have been issued. It is the case of
the complainant that the loan was lent on three occasions in an
installment of Rs.5 lakhs each and the last installment was on
30.07.2014. The accused prayed time of one year for repayment and
issued post dated cheques and also requested to present the cheques on
her intimation. The post dated cheque means the future date has to be
mentioned. The date mentioned on cheques in question at ExP.1, 3 and
5 is 17.06.2016. The complainant mentioned in the complaint that she
demanded for repayment after expiry of one year i.e. in May, 2015 and
as the accused again sought time of 1 year i.e. till May 2016, she
waited for another year. When she demanded repayment on
10.06.2016, the accused told her to present the cheques on
17.06.2016. Two things can be inferred from the averments in the
complaint, firstly that the cheques are not post dated cheques as
alleged and secondly that what was the reason for the complainant to
have accepted the post dated cheques dated 17.06.2016, when the
23 CC.19077/2016 (J)
accused asked initially for 1 year and if she has accepted the cheques
dated 17.06.2016, why would she demand for repayment in May 2015.
The reference to the above circumstances shows that the cheques were
blank and later filled without the consent of the accused. It is pertinent
to note that it has been brought in the evidence before the Court that
the difference of opinion arose between the parties during the year
2015 and accused has been residing separately since 2015. Such being
the case, there is no chance of she giving the instruction to the
complainant to present the cheques in 2016. Infact accused filed dowry
harassment case against the complainant on 04.04.2016 before the
Soladevanahalli P.S. It is the defence of the accused that the blank
signed cheques were misused by the complainant. During the cross
examination of DW.1, when she was asked by the counsel for the
complainant that it is not correct to sign the blank cheques, she
answered that she signed the cheques because of the trust and faith in
her husband. Her husband obtained several cheques signed by her. It
shows that the stand of the accused is firm and she stood the test of
cross examination. All these aspects create doubt as to the issuance of
cheques alleged by the complainant in the complaint.
22. The counsel for the complainant cross examined the
accused in length. It was elicited in the crossexamination of DW1 that
her father has income of Rs.5 lakhs to Rs.6 lakhs from the agriculture
but she did not have any documents. Her father gave Rs.10 lakhs to
start the business of Sigandooreshwari Amma Minerals. The established
water plant was taken by them. She used to visit the unit 3 to 4 times a
week. The account in the Corporation Bank was closed. She closed it as
there was no business from the Proprietary concern. She closed the
24 CC.19077/2016 (J)
account as her husband got married for the second time and he used to
harass her. She did not file complaint in the police station in respect of
the blank signed cheques remained in the possession of complainant
and her son. She did not give intimation to the Bank to make stop
payment in respect of the blank signed cheques remained in the
possession of complainant and her son. However as discussed above the
answers elicited in the cross examination of DW.1 do not support the
case of the complainant. DW1 clearly stated in her crossexamination
that M/s.Sigandooreshwari Amma Minerals was looked after by the
complainant and her son. Though the business was in her name, it was
run by them. They used to have all the documents pertaining to the
business in their custody. When it was asked that the transactions were
made in her name, she answered that the complainant and her son
used to take signatures on the blank documents for the purpose of
business. The current account in the Corporation Bank was maintained
in the name of M/s.Sigandooreshwari Amma Minerals. The passbook
and cheque book were with her husband, who is the son of
complainant and he used to deposit and withdraw the amount. This
shows that nothing worth was elicited in the cross examination of
accused to support the case of the complainant.
23. On assessment of entire evidence, it is clear that
complainant and accused were family members residing together in the
same house and their relationship was cordial. The cheques at ExP.1,3
and 5 and signatures have been admitted by the accused. Accused
disputed the loan transaction and issuance of cheques as alleged. The
facts and circumstances were brought on record through the defence
evidence led by the accused No.2/DW.1 and the evidence of the
25 CC.19077/2016 (J)
complainant/PW.1 i.e. cross examination of PW.1. The son of the
complainant married again during the subsistence of marriage with
accused. Thereafter due to the strain in the relationships she started
residing separately since 2015. She also filed dowry harassment case
against the complainant in Solladevanahalli P.S. on 04.04.2016, which
is not disputed. The father of the accused filed civil suits and criminal
case against complainant and her son to recover money of Rs.75 lakhs,
which are admitted to be pending. ExD.4 to 7 are the certified copies of
the vakalaths of complainant and her son for having appeared in those
cases. The version of the complainant in respect of the issuance of
cheques, contents written and signatures is not believable. On perusal
of ExP.1, 3 and 5, it clearly appears that i. the name of the complainant
and date, ii. the amount in words and figure and iii. the signature of
accused are all written in different inks and therefore undoubtedly they
were written at different points of time, without the consent of the
accused. The date of issuance of cheques is not mentioned in the
complaint. As per the version of the complainant, accused instructed
her to present the cheques on 17.06.2016, which is also unbelievable
as the relations were strained by then and accused has been residing
separately since 2015. The proprietary concern of accused and the
other businesses of the family were run by the complainant and her
son. The complainant admitted the fact in her cross examination that
she herself and her son were running M/s.Sigandooreshwari Amma
Minerals. The transactions in ExD.1 and evidence in ExD.3 and 8
clearly show that the family businesses were being run by the
complainant and her son. It shows that the accused has no active role
in the business. Therefore the defence of the accused that the blank
signed cheques were misused by the complainant is a probable defence
26 CC.19077/2016 (J)
and she proved it by relying on the defence evidence led by her and
also relying on the evidence of the complainant on record.
24. Mere denial of liability is no defence and something
probable has to be brought on record to rebut the presumption U/s.139
of NI Act. In the case on hand, the facts and circumstances were
brought on record and they are sufficient to rebut the presumption. The
accused proved by way of preponderance of probabilities that there was
no existence of consideration at the given point of time and also proved
that she has not issued the cheques at Ex.P.1,3 and 5 towards discharge
of legally enforceable debt/liability. Hence, the accused rebuts the
statutory presumption as envisaged U/s.118(a) and 139 of the N.I.Act.
Accordingly, the accused No.2 is found not guilty for the offence
punishable U/s.138 of the N.I.Act. Hence, I proceed to answer the point
No.1 in Negative and Point No.2 in the Affirmative.
25. Point No.3 : In view of the reasons assigned on Point No.1
and 2, I proceed to pass the following:
ORDER
As per the provisions of Sec.255(1) Cr.P.C. the accused is hereby acquitted of the offence punishable u/s.138 of NI Act, 1881.
The bail bond and surety bond are hereby stand cancelled.
(Dictated Judgment to the Stenographer directly on the computer, transcript thereof is computerized and printout taken by her, is verified and then pronounced by me in Open Court on this the 12th day of July2021.) (Lokesh Dhanapal Havale) XV Addl. CMM., Bangalore.
27 CC.19077/2016 (J) ANNEXURE Witnesses examined for the Complainant: PW.1 A.Parvathamma PW.2 S.Prasad, Bank Manager Documents marked for the Complainant: Ex.P.1 Cheque Ex.P.1(a) Signature of the accused.
Ex.P.2 Bank endorsement.
Ex.P.3 cheque.
Ex.P.3(a) Signature of the accused.
Ex.P.4 Bank endorsement.
Ex.P.5 cheque.
Ex.P.5(a) Signature of the accused.
Ex.P.6 Bank endorsement.
Ex.P.7 Legal Notice.
Ex.P.8 Reply Notice.
Ex.P.9 & P.10 Two Postal receipts.
Ex.P.11 & P.12 Two Postal Acknowledgment.
Witnesses examined For Defence: DW1 Smt.Ganga Nataraj.
Documents marked for Defence: Ex.D1 Bank Account statement of M/s.Sigandooreshwari Amma Minerals.
Ex.D.2 Certified copy of order sheet in CC.No.19078/2016.
Ex.D.3 Certified copy of evidence of Smt. Parvathamma in CC.No.19078/16.
28 CC.19077/2016 (J) Ex.D.4 to 7 Certified copies of vakalathnamas of complainant and her son in O.S.No.1132/2016 pending on the file of First Addl. Civil Judge, Bengaluru Rural District, Bengaluru and C.C..No.4823/2016 pending on the file of C.J.M., Bengaluru Rural District.
Ex.D.8 Certified copy of further evidence of Smt. Parvathamma in CC.No.19078/16.
(Lokesh Dhanapal Havale) XV Addl.CMM., Bangalore.