Bangalore District Court
Intended To Purchase Site With The Said ... vs Calling Upon Him To Repay The Cheque ... on 17 January, 2022
1 CC.No.31980/2018
IN THE COURT OF THE XV ADDL CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY.
Dated this the 17th day of January2022
Present: Lokesh Dhanapal Havale, B.A.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.31980/2018
2.Name of the Complainant: Smt.Kanak Latha Singh,
W/o.Sri.Sanjay Singh,
aged about 42 years,
No.G21, 2nd Floor,
Upkar Green Field,
Attibele Check Post,
Bangalore562107.
Phone No.9611296932
3.Name of the accused: Sri.Vinayak.B. Gulhane,
S/o.B.B.Gulhane,
Aged bout 45 years,
M/s.Exide Industries Ltd.,
Maintenance Supervisor,
Auto Battery Maintenance
Department, Survey No.246,
Chichurakanapalli,
Sevaganapalli Panchayath,
Hosur Taluk,
Krishnagiri Dist6531 103.
Mob: No.7349071312,9036534591.
Also Residing at:
Post: Bori,
Taluk - Chandur (Rly)
Amaravathi District.
Maharashtra 444708.
4.The offence complained of : U/s.138 of Negotiable Instruments
Act.
2 CC.No.31980/2018
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 17.01.2022
***
This complaint is filed U/Sec.200 of Cr.P.C. against the accused for
the offence punishable U/Sec.138 of the Negotiable Instruments Act,
1881.
2. The facts in brief of the complaint are as under:
The accused and complainant are family friends and neighbours.
The accused sought for hand loan of Rs.15,00,000/ for two months.
The complainant had sold the property and had cash of Rs.12,00,000/
and she was also having family savings of Rs.3,00,000/. The
complainant intended to purchase site with the said amount but she
could not get a suitable site. The complainant with the consent of her
husband gave a sum of Rs.15,00,000/ by way of cash to the accused on
01.06.2018. The accused promised to repay the amount within 60 days.
He postponed the repayment and on repeated demands, he issued
cheque bearing No.007364 dated 10.10.2018 for a sum of
Rs.15,00,000/ drawn on Punjab and Maharashtra Cooperative Bank
Ltd., Attibele branch, Bengaluru in her favour. Thereafter she presented
the cheque for encashment through her Banker and it was returned
dishonored with an endorsement "Funds Insufficient" on 15.10.2018.
He did not pay the amount even after intimation of dishonor of the
cheque. Thereafter she issued legal notice dated 20.10.2018 to the
accused calling upon him to repay the cheque amount. The notice sent
through RPAD was served on the accused on 27.10.2018. He did not
3 CC.No.31980/2018
pay the amount even after the expiry of 15 days. The accused thereby
committed an offence punishable U/s.138 of the N.I.Act.
3. After the institution of the complaint, the cognizance was
taken and it was registered as PCR No.15110/2018. The sworn
statement of the complainant was recorded and on the basis of sworn
statement and other materials on hand, the criminal case was registered
against the accused and summons was issued to him. In response to the
service of summons, the accused appeared through his learned counsel
and got enlarged on bail. The prosecution papers were supplied to the
accused and the substance of the accusation was read over and
explained to the accused. He pleaded not guilty and claimed to be tried.
4. During trial the complainant examined herself as PW1 and
got marked Ex.P.1 to P.9. The accused examined himself as DW1 and
he got marked Ex.D.1 to D.6.
5. Heard learned counsels for the complainant and accused. I
have perused the entire materials on record and on perusal, the points
that arise for my consideration as under;
1. Whether the complainant proves that the
Accused issued the cheque bearing
No.007364 dated 10.10.2018 for a sum of
Rs.15,00,000/ drawn on Punjab and
Maharashtra Cooperative Bank Ltd., Attibele
branch, Bengaluru towards the discharge of
legally enforceable debt / liability and on its
presentation for encashment, it was
dishonored with an endorsement "Funds
Insufficient" and even after the issuance of
legal notice, the accused has not paid the
4 CC.No.31980/2018
amount within 15 days from its service 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 the N.I.Act?
3. What order?
6. 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;
REASONS
7. Point No.1and 2 : The points are taken together for the
common discussion to avoid repetition of facts and evidence. It is
necessary to discus the provisions U/s. 118(a) and 139 of the Act., 1881
at this stage.
"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;"
5 CC.No.31980/2018
"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."
8. On plain perusal of the provision U/s. 118(a) and 139 of
the N.I.Act., it can be seen that initially the presumptions constituted
under these two provisions are in favour of the complainant. However
the presumptions are rebuttable and 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.
9. It is also well established that an accused need not examine
himself for discharging the burden of proof placed upon him under a
statute. He may discharge his burden on the basis of the materials
already brought on record. An accused has constitutional rights to
remain silent. 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 doubts, the standard of
proof so as to prove a defence on the part of an accused is
preponderance of probabilities.
10. Under the light of above position of the law, I have perused
the complaint and the evidence placed on record. The complainant in
support of her claim made in the complaint has adduced evidence by
examining herself as PW1 and she got marked Ex.P.1 to 9. PW1 filed
her evidence affidavit on oath as her examinationinchief and
6 CC.No.31980/2018
reiterated the complaint averments. Ex.P.1 is the cheque bearing
No.007364 dated 10.10.2018 for a sum of Rs.15,00,000/ drawn on
Punjab and Maharashtra Cooperative Bank Ltd., Attibele branch,
Bengaluru in favour of the complainant and Ex.P.1(a) is the signature of
the accused. Ex.P.2 is the Bank Memo dated 15.10.2018 with shara
"Funds Insufficient". Ex.P.3 is the office copy of legal notice dated
20.10.2018. Ex.P.4 & 5 are the Postal receipts for having sent the legal
notice to the accused. Ex.P.6 and P.7 are the postal acknowledgements
for having served the notice on the accused. Ex.P.8 is the reply notice
dated 11.02.2019. Ex.P.8(a) is the postal envelope in which the reply
notice was received. Ex.P.9 is the Bank passbook of the complainant
pertaining to her account in Corporation Bank. It discloses the bank
transactions from 09.01.2013 till 28.01.2017.
11. On the other hand the accused examined himself as DW1
and contested the case taking several probable defences out of which
his specific defence is that he had no transaction with the complainant.
He had transaction with the husband of the complainant by name
Sanjay Singh. He was in need of loan during November2015 and he
had borrowed loan of Rs.15,000/ from Sanjay Singh. He discharged
the said loan by way of three installments through payment by way of
IMPS to the bank account of Sanjay Singh in Syndicate Bank, Attibele
branch, bearing account No.04292200029898 through his Bank account
in Punjab and Maharashtra Cooperative Bank Ltd, Attibele, Bengaluru.
He closed the said loan in the month of March 2016. The accused
needed financial assistance in the month of November 2016 and
therefore he had borrowed a sum of Rs.50,000/ from Sanjay Singh on
25.11.2016 agreeing to repay the double amount i.e., Rs.1 lakh in ten
monthly installments which includes the interest. The husband of the
7 CC.No.31980/2018
complainant Mr.Sanjay Singh took blank signed cheque bearing
No.007364 drawn on Punjab and Maharashtra Cooperative Bank Ltd.,
Attibele, Bengaluru for security of the said loan. The accused deposited
Rs.55,000/ to the account of Sanjay Singh in Syndicate Bank, Attibele
branch, bearing account No.04292200029898 in six installments
through IMPS transfers viz. Rs.10,000/ on 18.4.2017, Rs.10,000/ on
23.5.2017, Rs.10,000/ on 10.7.2017, Rs.10,000/ on 7.11.2017,
Rs.10,000/ on 17.03.2018, Rs.5,000/ on 12.05.2018. Due to the
financial difficulties, he had not paid the remaining installments. On
25.10.2018 he received legal notice dated 20.10.2018 and approached
the Sanjay Singh and questioned him in respect of the same. Sanjay
Singh told him that it was formality and the case would be withdrawn if
the remaining installments are paid. The accused was ready to pay the
entire remaining amount in one lumpsum but Sanjay Singh postponed
the same on one or other pretext. Thereafter he received summons from
the Court to appear on 23.02.2019. He denied the entire transaction
alleged in the complaint and issuance of cheque in favour of the
complainant. He also challenged the financial capacity of the
complainant.
12. I have perused the exhibits on which the complainant has
placed her reliance. On perusal of the exhibits, it is clear that the
cheque at Ex.P.1 bearing No.007364 dated 10.10.2018 for a sum of
Rs.15,00,000/ drawn on Punjab and Maharashtra Cooperative Bank
Ltd., Attibele branch, Bengaluru was presented through the Bank within
its validity for encashment and the Bank issued endorsement as per
Ex.P.2 on 15.10.2018 with shara "Funds Insufficient". The complainant
issued statutory notice dated 20.10.2018 as per Ex.P.3 within time from
the date of receipt of Bank Memo. The notice was served on the accused
8 CC.No.31980/2018
on 27.10.2018. The complaint has been filed on 27.11.2018, which is
within limitation. The accused admitted that the cheque belongs to his
account. He admitted the signature on the cheque and the receipt of
notice. It is his specific defence that he issued the cheque as security in
favour of the husband of the complainant by name Sanjay Singh for the
loan amount of Rs.50,000/ borrowed from him. 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 admission of
signature in cheque at Ex.P.1 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. He can rebut it by raising probable
defences and proving it relying on the evidence of the complainant or
by leading direct evidence.
13. The accused raised the specific defence of transaction
being made with the husband of the complainant by name Sanjay Singh
to the tune of Rs.50,000/ agreeing to repay the double amount i.e.,
Rs.1,00,000/ in ten installments of Rs.10,000/ . He repaid Rs.55,000/
and unable to repay the remaining amount. The accused disputed the
writings on the cheque in question at Ex.P.1 and claimed that the
complainant misused the blank signed cheque given to her husband
Sanjay Singh as security. He admitted the signature on the cheque at
ExP.1. It was marked as Ex.P.1(a). The admission regarding drawer's
signature on the cheque, attracts the ratio laid down by the Hon'ble
Supreme Court of India in its decisions reported in 2011 (11) SCC -
441 - Rangappa V/s.Sri.Mohan and SCC 2015 (8) Page No.378 -
T.Vasanthakumar V/s.Vijayakumari and the recent Judgment delivered
in Crl. Appeal No.508/2019 - Rohit Bhai Jeevanlal Patel V/s. State of
9 CC.No.31980/2018
Gujarath and another. The ratio is that the cheque shall be presumed to
be for consideration unless and until the court forms a belief that the
consideration does not exist or considers the nonexistence of
consideration so probable that a prudent man would under no
circumstances act upon the supposition that the consideration does
exist. Further as per Section 20 of the N.I.Act, if the person signs and
delivers Negotiable Instrument and it is left incomplete and thereby he
authorizes the holder to complete the Negotiable Instrument and
thereby he is liable for the amount mentioned in the Negotiable
Instrument. However the facts in this case are different and the accused
contended that he gave cheque to the husband of the complainant by
name Sanjay Singh and not to complainant. The burden is on the
accused to prove his defence.
14. The accused can prove his defence either by relying on the
evidence of the complainant or by leading the direct evidence. In order
to prove his defence, he examined himself as DW1 and got marked
Ex.D.1 to D.6. Ex.D.1 is the cheque book record slip. It discloses that
the cheque number 7364 was given to Sanjay Singh and it was blank.
Ex.D.2 is the two Bank Passbooks of the accused pertaining to PMC
Bank. On perusal of Ex.D.2, it is clear that an amount of Rs.10,000/
was transferred through IMPS on 28.12.2015 and an amount of
Rs.5,000/ was transferred through IMPS on 29.12.2015. It also
discloses that an amount of Rs.10,000/ was transferred through IMPS
on 18.04.2017 and an amount of Rs.10,000/ on 23.05.2017. Ex.D.3
the Bank Passbook of the wife of the accused pertaining to Karur Vysya
Bank. On perusal of Ex.D.3, it is clear that an amount of Rs.10,000/
was transferred through IMPS on 10.07.2017. Ex.D.4 the Bank
Passbook of the accused pertaining to Federal Bank. Ex.D.5 is the Bank
10 CC.No.31980/2018
statement of the accused pertaining his account in the Federal Bank. On
perusal of Ex.D.5, it is clear that an amount Rs.10,000/ was transferred
through IMPS on 07.11.2017. Ex.D.6 is the Bank account statement of
the husband of the complainant in Syndicate Bank, Attibele branch,
bearing account No.04292200029898. It discloses that the accused
deposited Rs.55,000/ in six installments through IMPS transfers viz.
Rs.10,000/ on 18.4.2017, Rs.10,000/ on 23.5.2017, Rs.10,000/ on
10.7.2017, Rs.10,000/ on 7.11.2017 and Rs.10,000/ on 17.03.2018.
During the crossexamination PW1 admitted that the accused took loan
of Rs.1 lakh from her husband and the repayments made are in respect
of the said loan.
15. The counsel for the accused cross examined PW.1 in length
in respect of the loan advanced by her husband Sanjay Singh to the
accused. It was elicited that she knew that the accused took Rs.15,000/
from her husband in November 2015. She stated in her cross
examination that she did not know that the accused repaid the said loan
amount in three installments. She did not know that the accused
cleared the loan in March 2016. It was also elicited that she did not
know that her husband gave Rs.50,000/ loan to the accused on
25.11.2016. She did not know that the said loan had to be repaid with
ten installments of Rs.10,000/. She denied that the blank signed
cheque was given as security to her husband was misused by her. She
did not know that the accused repaid Rs.55,000/ to her husband. On
perusal of the above portion of cross examination of PW.1, it is clear
that there were transactions between the accused and the husband of
the complainant. It appears that the complainant knew about the
transactions as she admitted one of them but instead of specifically
answering the questions, she stated that she did not know about it.
11 CC.No.31980/2018
Further Ex.D.2 to D.6 clearly establish the fact that the accused took
loan of Rs.15,000/ in 2015 and Rs.50,000/ in the year 2016 from the
husband of the complainant as alleged in the reply notice and defence
evidence. It also establish the fact that he repaid the loan of Rs.50,000/
along with partial interest in six installments as stated above. ExD.1
clearly establish the fact that the cheque in question was given to Sanjay
Singh as security for the aforesaid loan and it was a blank cheque. The
counsel for the complainant did not crossexamine the accused/DW1
on Ex.D1 to D6. The said documents remain undisputed. The
suggestions were made to the accused in respect of the case of the
complainant but the accused denied all the suggestions. Therefore
Ex.D1 to D.6 prove the defence of the accused. Therefore the evidence
of the PW.1 is doubtful as to the alleged transaction in respect of
cheque in question. On the basis of the evidence available on record
inference could be drawn that the accused and Sanjay Singh had
financial transactions and there is possibility of his giving cheque as
security to Sanjay Singh and it can not be ruled out.
16. It is alleged in the complaint that the accused is neighbour
and family friend. It was denied by the accused. The counsel for the
accused cross examined PW.1 in length in respect of the relationship. It
was elicited in the crossexamination of PW1 that she did not mention
the residential address in complaint and notice. She stated that she
mentioned the factory address in the notice and complaint. She also
admitted that the address of the accused at Maharashtra is mentioned
in the complaint. She did not produce any document to show that
accused is neighbour. It is pertinent to note that if at all the accused was
neighbour and the family friend, the complainant must have known the
12 CC.No.31980/2018
local residential address of the accused. This creates doubt on the case
of the complainant.
17. It is alleged in the complaint that the accused sought for
loan and the loan was given to the accused on 01.06.2018 as he was in
financial trouble. It was denied by the accused. The counsel for the
accused cross examined PW.1 in length in respect of the purpose of
loan. It was elicited in the cross examination of PW.1 that she gave loan
to the accused for business purpose. When she was asked about the
nature of business, she answered that she did not know but later
deposed that she gave loan for real estate business of the accused. She
did not mention in the complaint or notice that the accused borrowed
loan for real estate business. It was also elicited that she did not
mention the date of loan i.e., 01.06.2018 in the legal notice. There is
nothing on record to show that the accused was doing the real estate
business and loan was advanced on 01.06.2018. Therefore it creates
doubt as to the lending of loan by the complainant on 01.06.2018 for
real estate business of the accused.
18. Another point to be noted that the accused challenged the
financial capacity of PW1 to lend huge amount of Rs.15,00,000/. The
counsel for the complainant argued that the complainant is business
woman doing clothes business and she had savings about Rs.3,00,000/.
She also sold her property and she was having an amount of
Rs.12,00,000/ with her. Therefore the complainant is having financial
capacity. The counsel for the accused argued that the sale was of the
year 2015 and why would any one keep huge amount in cash for longer
period of around 3 years. It creates doubt on the case of the
13 CC.No.31980/2018
complainant. She also had not produced any documents for her savings
amount of Rs.3,00,000/. He relied on the following judgments;
1. The Judgment of Hon'ble High Court of Karnataka
in the case of Veeraiah Vs. G.K.Madivalar reported in
LAWS(KAR) 2011 11 35, wherein it was held that mere
issuance of cheque itself would not be sufficient unless it is
shown that the said cheque was issued towards discharge of
legally recoverable debt.
2. The Judgment of Hon'ble High Court of Karnataka
in the case of Manjunath Vs. B.K.Subbarao reported in ILR
2020 KAR 227, wherein it was held that if the plaintiff
failed to prove the financial capacity to lend huge amount
the presumption that arisen in favour of the plaintiff about
existence of consideration stands rebutted.
3. The Judgment of Hon'ble High Court of Punjab and
Harayana in the case of Manjith Singh Vs. Kanta Verma
reported in 2015 (3) DCR 132, wherein it was held that
since there is no satisfactory explaination for source of funds
out of which such alleged loan was granted, acquittal of
accused is justified.
4. The counsel for the accused relied on the Judgment
of Hon'ble Supreme Court of India in the case of
Basalingappa Vs. Mudibasappa reported in AIR 2019 SC
1983, wherein it was held that when the accused
questioned the financial capacity and the complainant fails
14 CC.No.31980/2018
to give satisfactory reply, the evidence on record, thus, is a
probable defence, which shifted the burden on the
complainant to prove his financial capacity and other facts.
19. The counsel for the accused cross examined the PW.1 in
length and it was elicited that the amount of Rs.15,00,000/ was given
to accused by way of cash. She had documents to show that she had
Rs.3,00,000/ with her and she received Rs.12,00,000/ by selling the
site at relevant point of time. She produced the xerox copy of sale deed
dated 7.8.2015. Therefore it was not marked in evidence. However the
complainant produced the certified copy of the sale deed dated
07.08.2015 at the time of arguments in support of her case. It is clear
from the cross examination of PW.1 that the sale transaction took place
in the year 2015 and the complainant received an amount of
Rs.12,50,000/ under the sale deed dated 07.08.2015. As per the sale
deed, Rs.6,50,000/ was transfered to her account and Rs.6,00,000/
was given in cash. It is supported by her bank pass book at ExP.9. As per
ExP.9, an amount of Rs.6,50,000/ was credited to her account on
10.08.2015. ExP.9 also discloses that an amount of Rs.1,00,000/
withdrawn through self cheque on 13.08.2015; Rs.3,00,000/ given to
Dilip Kumar J. through cheque No.227481; Rs.48,000/ withdrawn
through self cheque twice on 20.08.2015 and 24.08.2015 and
Rs.1,00,000/ given to wife of the accused by name Bhavana V. Gulhane
through cheque No.643781. Therefore the amount credited her account
was spent in the year 2015 itself. PW.1 stated in her cross examination
that she has not produced any documents for having given the amount
to the accused by way of cash. ExP.9 clearly shows that the complainant
is having knowledge of the bank transactions and she has been doing
the transactions through cheques. When PW.1 was asked during her
15 CC.No.31980/2018
cross examination that whether she had any difficulty to give the loan
amount by way of Bank transfer, she answered that she sold the site
and she had the amount with her by way of cash and therefore she gave
the amount by way of cash. It is pertinent to note that amount of
Rs.6,50,000/ credited to her account after the sale was spent in 2015
itself. If at all she kept the amount by way of cash, the denomination of
the notes might be of old notes. The government of India by way of
public notification banned the old notes on 08.11.2016. The alleged
loan transaction is dated 01.06.2018. The old notes are of no use after
the notification. She had to deposit the old notes and take new notes
from the bank. There is no evidence on record in that regard. The
evidence on record clearly show that the complainant has no source of
funds for lending huge amount of Rs.15,00,000/at the relevant point of
time. Therefore the case of the complainant is doubtful.
20. Apart from that PW.1 admitted in the cross examination
that she gave Rs.5,000/ hand loan to the wife of the accused by name
Bhavana in the second week of March 2016. She also admitted that the
accused gave cheque for repayment of Rs.5,000/ loan obtained by his
wife. The said cheque was dishonored on its presentation for
encashment on 16.03.2016. She also admitted that Bhavana gave
another cheque of the accused for Rs.5,000/ and the said cheque was
also dishonored. She admitted that accused transferred Rs.1000/ on
21.03.2016 and Rs.4,000/ on 22.03.2016 through IMPS to her
account. She also admitted that the accused transferred Rs.5000/ on
7.04.2016 through IMPS to her account in respect of repayment of loan
of Rs.5,000/ given to his wife in the first week of April 2016. When it
was asked to PW.1 that she gave Rs.5000/ loan to wife of the accused
in the second week of April 2016 and the accused transferred Rs.5000/
16 CC.No.31980/2018
through IMPS on 13.04.2016, she answered that the accused deposited
the said amount to her account in respect of the loan of Rs.1 lakh given
by her to the accused. When it was asked that she gave Rs.10,000/
loan to wife of the accused in the last week of April 2016 and the
accused transferred Rs.10,000/ through IMPS on 28.04.2016, she
answered that the accused deposited the said amount to her account in
respect of the loan of Rs.1 lakh given by her to the accused. When it
was asked again that she gave Rs.5000/ loan to wife of the accused in
the first week of May 2016 and the accused transferred Rs.5000/
through IMPS on 04.05.2016, she answered that the accused deposited
the said amount to her account in respect of the loan of Rs.1 lakh given
by her to the accused. She admitted that Rs.45,000/ was deposited
through her account through IMPS. The above portion of cross
examination of PW.1 clearly show that the complainant had transaction
with the wife of the accused for smaller amount and the wife of the
accused and the accused were unable to pay the small amount during
the year 201516. Therefore no prudent man would give loan of huge
amount of Rs.15,00,000/, where the borrower was unable to repay the
smaller amounts of loan taken earlier. Therefore, the case of the
complainant is not at all believable.
21. It is alleged in the complaint that the transaction took place
with the consent of the husband of the complainant and the
complainant stated in her evidence that her husband was present at the
time of lending the loan to the accused to the tune of Rs.15,00,000/ by
way of cash. As per the defence of the accused, he had transaction with
the husband of the complainant and the cheque in question was given
to husband of the complainant as security. When PW1 was asked
during her crossexamination that whether she can examine her
17 CC.No.31980/2018
husband as witness in this case, she answered that it was impossible for
her to examine her husband. The counsel for the accused relied on the
Judgment of Hon'ble Supreme Court of India in the case of Vijay Vs.
Lakshman and Another reported in (2013) 3 SCC 86, wherein it was
observed that non examination of father of the complainant, who was
said to be present outside the Court hall on the date of complainant's
statement was recorded also assumes importance. It gives rise to an
inference that the non examination was the deliberate attempt of the
prosecution to keep him away from the Court for otherwise he would have
to accept that the accused was actually supplying the milk to him and that
accused was given the price of the milk in advance as per the trade practice
in acknowledgement and by way of security for which amount the accused
had issued a cheque in question. He argued that the complainant
deliberately did not examine her husband to hide the truth. The
statement of PW.1 that it was impossible for her to examine her
husband in support of her case shows the conduct of the complainant.
Therefore, inference can be drawn for non examination of material
witness that if the said witness was examined the truth about the
transaction would come out.
22. The accused has pleaded and proved that he has borrowed
the amount from Sanjay Singh and has repaid it. Therefore, the accused
was able to prove his defences by preponderance of probabilities by
adducing evidence by himself and also by relying upon the evidence led
by the complainant and creating the doubt in the transaction as alleged
in the complaint. The discussion made above shows that there is no
existence of legally enforceable debt and the cheque in question at
Ex.P.1 was issued as a security for the loan transaction taken place
between the accused and the husband of the complainant by name
18 CC.No.31980/2018
Sanjay Singh. Further that the Ex.P.1 was not given for the alleged debt
of complainant and that the blank cheque was issued in favour of her
husband as security. The aforesaid reasons are sufficient to hold that the
complainant failed to prove the issuance of cheque by the accused in
her favour in discharge of the legally enforceable debt as alleged. It is
well settled that the accused needs to prove his defence by
preponderance of probabilities. It is sufficient if the doubt is created on
the alleged transaction. The accused has created the doubt on the
alleged issuance of cheque in favour of complainant as alleged in the
complaint. Therefore this Court is of the opinion that the accused
rebutted the statutory presumption U/s.139 and 118(a) of the Act.
Accordingly, the accused is found not guilty for the offence punishable
U/s.138 of the N.I.Act. Hence, the Point No.1 is answered in the
Negative and Point No.2 is answered in the Affirmative.
23. Point No.3 : In view of the reasons assigned to 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 Accused is set at liberty forthwith.
The personal bond executed by the accused is hereby stands cancelled and office is directed to refund cash surety of Rs.5,000/ to the accused.
(Dictated to the Stenographer, transcript thereof is computerized and printout taken by him, is verified and then pronounced by me in Open Court on this the 17th day of January2022.) (Lokesh Dhanapal Havale) XV Addl. CMM., Bangalore.
19 CC.No.31980/2018ANNEXURE Witnesses examined for the Complainant: PW.1 Kanak Latha Singh Documents marked for the Complainant: Ex.P.1 : Original cheque.
Ex.P.1(a) : Signature of the accused.
Ex.P.2 : Bank Endorsement
Ex.P.3 : Legal Notice.
Ex.P.4 & P.5 : Two Postal Receipts.
Ex.P.6 & P.7 : Two Postal Acknowledgements.
Ex.P.8 : Reply Notice.
Ex.P.8(a) : Empty Postal envelope
Ex.P.9 : Corporation Bank A/c Passbook.
Witnesses examined For Defence: DW1 Vinayak Gulhani.
Documents marked for Defence: Ex.D.1 : Cheque Book Record slip. Ex.D.2 : PMC Bank A/c Passbook of accused. Ex.D.3 : Karur Vysya Bank A/c Passbook of wife of accused. Ex.D.4 : Federal Bank A/c Passbook of accused. Ex.D.5 : Federal Bank A/c Statement of accused. Ex.D.6 : Syndicate Bank A/c Statement of Sanjay Singh .
(Lokesh Dhanapal Havale) XV Addl.CMM., Bangalore.