Bangalore District Court
Aged About 37 Years vs Aged About 36 Years on 23 March, 2017
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
DATED THIS THE 23rd DAY OF MARCH, 2017
PRESENT
Sri. Shridhar Gopalakrishna Bhat, LL.B
XIV ADDL. C.M.M., BENGALURU
CASE NO C.C. NO.27562/2012
C. Ramu @ Madanakumar
S/o. Chinnaswamy
COMPLAINANT Aged about 37 years, 8/A, 1st Main, 1st
Cross, Prakruthi Layout, Hennur Cross,
Bengaluru - 560 043.
Smt. Angela Priya Harris
D/o. Issac Harris
ACCUSED Aged about 36 years, No.11, Udayashankar
Road, Udayanagar, Bengaluru - 560016
OFFENCE U/s.138 of Negotiable Instruments Act
PLEA OF THE
ACCUSED Pleaded not guilty
FINAL ORDER Accused is acquitted
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU
2 C.C. No.27562/2012
JUDGMENT
The complainant has filed this complaint under Sec.200 Cr.PC against the accused for the offence punishable under Section 138 r/w Sec.142 of Negotiable Instruments Act. (herein after referred as N.I. Act)
2. The case of the complainant is that, the complainant is running "Women's Development Organization" and the accused became Honorary Secretary and serving in the said organization as a secretary. It is further case of the complainant that the mother of the accused was sick and was undergoing medical treatment in Wockhard Hospital as out patient. Since the accused was unable to meet the emergency of medical expenses requested with the complainant for hand loan of Rs.1 lakh. On the request of the accused, the complainant had paid Rs.45,000/- on 16.5.2011 and a sum of Rs.40,000/- on 26.5.2011 by cash. He also advised the accused to purchase two wheeler on hire purchase scheme for office use and as such he had paid down payment of Rs.15,000/- to purchase vehicle on 3.6.2011 to the accused. To repay the said amount of Rs.1 lakh in all, the accused had issued post dated cheque on 3.6.2011 bearing No.685775 dated 25.7.2011 for Rs.1 lakh drawn on Axis Bank, M.G. Road, Bengaluru. After purchase the two wheeler on 8.6.2011 3 C.C. No.27562/2012 under HDFC Banker Hire Purchase Scheme and availing the loan from the complainant, the accused stopped coming to the office of the complainant and also her involvement in the organization activity. The complainant presented the cheque issued by the accused through his banker for encashment, but the said cheque was dishonoured with remark "stopped payment" vide memo dated 26.7.2011. Thereafter the complainant got issued legal notice dated 1.8.2011 to the accused calling upon her to make payment of the cheque amount within 15 days from the receipt of the said notice. He had sent the notice by registered post as well as through professional courier. The notice sent through courier returned on 12.8.2011 as unserved with a remark "location not correct". The accused purposefully evaded the service of notice on her. The accused deliberately instructed her banker to stop the payment without intimating the complainant and she did not comply with the demand made in the legal notice and thereby committed the offence punishable U/s.138 of N.I. Act willfully. Therefore the complainant is constrained to file the present complaint and accordingly prayed for conviction of the accused and also for grant of compensation in his favour in the interest of justice and equity.
3. After filing of this complaint, cognizance was taken for the offence punishable U/s.138 of N.I. Act. Sworn 4 C.C. No.27562/2012 statement of the complainant was recorded. This court was satisfied as to prima facie case made out by the complainant for issuance of the summons to the accused and accordingly Criminal Case was registered against the accused for the offence punishable U/s.138 of N.I. Act and summons was ordered to be issued to the accused.
4. In pursuance of the summons issued by this court, the accused has put up her appearance through her counsel and enlarged on bail. Thereafter plea was recorded. The accused has denied the substance of accusation and claimed for trial.
5. In order to prove the case of the complainant, the complainant is examined as PW.1 and got marked as many as 14 documents as per Ex.P1 to P14. He has also examined one witness as PW.2 in support of his case, but the said witness has not opted to appear before the court for cross-examination and as such the evidence of PW.2 is liable to be discarded and accordingly complainant's side evidence is closed. After closure of the complainant's side evidence, statement of the accused as provided U/s.313 of Cr.PC was recorded. The accused has denied the evidence of the complainant, which is found against her and also filed her written statement at the time of recording her statement. The accused herself examined as DW.1 and got marked two 5 C.C. No.27562/2012 documents as per Ex.D1 & D2 and also got marked one document as per Ex.D1 during cross-examination of DW.1 (since by oversight two documents are marked as Ex.D1, the document marked during cross-examination of PW.1 is herein after treated as Ex.D1(a) for convenience) and thereby evidence of the parties concluded.
6. The learned counsel for the respective parties relying on the oral and documentary evidence produced before this court filed their detail written arguments. The learned counsel for the complainant has relied upon the ruling reported in AIR 2010 SC 1898 - (Rangappa Vs Mohan) and 2007 AIR SCW 3578 - (C.C. Alavi Haji Vs Palapetty Muhammed and another) in support of his arguments. Similarly the learned counsel for the accused has relied upon the ruling reported in 2013 (1) DCR 326 - (Nandi Agro Fertilizers Vs. D. Satish), 2013 (1) DCR 762 - (Baij Nath Thakur Vs. The State of Bihar & another) and 2010 (3) KCCR 1950 - (Amzad Pasha Vs. H.N. Lakshmana) in support of her arguments.
7. On perusal of the entire material available on file and the written arguments submitted by the learned counsels along with citations relied, the points that would arise for consideration are:-
6 C.C. No.27562/20121) Whether the complainant proves that the accused had issued cheque in question in discharge of the legally recoverable debt as contended by him?
2) Whether the complainant further proves that the accused has committed the offence punishable under Section 138 of Negotiable Instrument Act?
3) Whether the complainant is entitled for the relief as prayed in the complaint?
4) What Order?
8. The above points are answered as under;
Point Nos.1 to 3 : Negative,
Point No.4 : As per the final order,
for the following.......
REASONS
9. Point Nos. 1 to 3: Since point Nos.1 to 3 are inter linked and to avoid repetition they are taken together for discussion. On going through the rival contention of the parties, oral and documentary evidence, it is clear that the complainant and accused are known to each other and the complainant is the President of "Women's Development Organization" and the accused was the Honorary Secretary in the said organization. It is also clear that subsequently the accused had given resignation to her post as Secretary 7 C.C. No.27562/2012 in the said organization. There is no dispute the cheque in question belonged to the accused and the said cheque was dishonoured for the reason "payment stopped by the drawer". So far as the other aspects are concerned, the accused has disputed the case of the complainant in toto. As already stated the accused has denied the case of the complainant as to commission of the offence punishable U/s.138 of N.I. Act while recording her plea for the said offence and also denied the incriminating evidence while recording her statement U/s.313 of Cr.PC. At the time of recording U/s.313 of Cr.PC the accused has not only denied the incriminating evidence, but she has given her defense statement in writing also. On going through the cross- examination of PW.1, statement of the accused U/s.313 of Cr.PC and also evidence of the accused, it is clear that the accused has denied any monitory transaction, issuance of cheque in favour of the complainant towards discharge of any debt or liability, existence of any debt or liability in favour of the complainant, service of notice on her before filing this complaint in toto as put up by the complainant.
10. It is the specific contention of the accused that the complainant came into contact with the accused for marriage proposal in the year 2010. The accused has working in B.P.O as "Medical Transcriptionist" and she wanted to help the women society and at that time the 8 C.C. No.27562/2012 complainant appointed her as a Honorary Secretary to help him as he was not having good English for communication. In the December 2010 the complainant had taken her to FCRA Department, New Delhi to interact with the officers to get bulk money for organization and at that time he took few photographs of the accused with him. Further the complainant wanted the accused to buy a two wheeler and he asked her to give eight blank cheques to arrange the loan for her, for which the accused had agreed and given eight blank signed cheques to purchase two wheeler. Thereafter, the accused had quit employment with the complainant as there was no free time to her to serve the women community as she has changed her job and she sent her resignation on 3.5.2011 through e-mail. But the complainant was not happy with the accused and thereafter he started threatening the accused stating that he is having blank cheques and he will misuse them. At that time, the accused came to know that the complainant is having her signed blank cheques and as such she gave stop payment letter to her banker on 28.6.2011 and also lodged police complaint on 4.7.2011 against the complainant for having threatened and misuse of her cheques and photographs which were taken earlier. It is also contention of the accused that there was no occasion for her to take any amount from the complainant either to buy the two wheeler 9 C.C. No.27562/2012 or to meet with hospital expenses of her mother. The complainant has no financial capacity to pay huge amount of Rs.1 lakh and filed false case to have wrongful gain. It is also the defence of the accused that the complainant had deliberately sent the notice to wrong address in order to avoid the reply and filed the present complaint by misusing the cheque to harass her and that the complainant is also having her another two signed blank cheques and few photographs and accordingly prayed for dismissal of the complaint in the interest of justice.
11. With the above background, if we analyze the material on record, in order to prove the case of the complainant, the complainant being PW.1 reiterated the complainant averments in his examination-in-chief by way of affidavit and produced cheque, bank endorsement, postal receipt, legal notice, returned postal envelop, notice contained in the said returned postal envelop, returned envelop courier service, notice contained in the said returned envelop, membership form of the accused, proforma invoice, resignation letter given by the accused, two receipts for having pledged the gold, LIC premium receipt of the accused as per Ex.P1 to P14 respectively. The complainant has also got marked the signature of the accused found in Ex.P1-cheque as per Ex.P1(a) and in that regard there is no dispute.
10 C.C. No.27562/201212. It is needless to say that the proceeding U/s.138 of N.I. Act is an exception to the general principle that the accused is presumed to be innocent until the guilt is proved beyond all reasonable doubt. In the proceedings initiated U/s.138 of N.I. Act, proof beyond all reasonable doubt is subjected to presumption envisaged U/s.139 of N.I. Act. Once the requirement of section 138 of N.I. Act is fulfilled, then it has to be presumed that the cheque was issued for discharge of the legally recoverable debt or liability. The presumption envisaged U/s.139 of N.I. Act is mandatory in nature and it has to be raised in all the cases on fulfillment of the requirements of Sec.138 of the said Act. In the ruling rendered by Hon'ble Apex Court in the case of Rangappa Vs. Mohan reported in AIR 2010 (SC) 1898 by relying on several rulings rendered by the Hon'ble Apex Court including the case of Krishna Janardhan Bhat Vs. Dattathraya G. Hegde reported in AIR 2008 (SC) 1325, it was held that "Existence of legally recoverable debt or liability is a matter of presumption U/s.139 of N.I. Act". The Hon'ble Apex Court disapproved the principle laid down in Krishna Janardhan Bhat's case that "Initial burden of proving existence of the liability lies upon the complainant". In the case of Sri. B.H. Lakshminarayana Vs. Smt.Girijamma reported in 2010 (4) KCCR 2637, it is held that "the presumption that the cheque was issued for 11 C.C. No.27562/2012 legally recoverable debt is to be presumed". Further as provided U/s.118 of N.I. Act, it is to be presumed that the cheque in question was issued for consideration on the date as found therein.
13. In the light of the rival contention of the parties, at the out set it is to be determined whether the complainant had complied with all the requirements of Sec.138 of N.I. Act as contended. It is admitted fact that Ex.P1-cheque belonged to the accused and Ex.P1(a) is her signature. Along with Ex.P1, the contents of Ex.P2 i.e bank endorsement dated 26.7.2011 is analyzed, it is clear that the complainant got presented the Ex.P1-cheque for encashment and the same was dishonoured for the reason "payment stopped by the drawer" on 26.7.2011 and the said fact is not disputed. The conjoint reading of Ex.P4 legal notice and Ex.P3 postal receipt for having sent Ex.P4-notice through registered post, Ex.P5-returned RPAD envelop, Ex.P6 notice contained in Ex.P5, Ex.P7 returned envelop sent through courier service and Ex.P8 the notice contained in Ex.P7 reveal that after dishonour of the cheque, the complainant got issued legal notice to the accused on 1.8.2011 i.e within 30 days from the date of dishonour of the cheque as found in Ex.P2. It is clear that the notice sent by registered post as well as through courier service were returned to the sender himself. The complaint averments 12 C.C. No.27562/2012 itself disclose that the notice sent through professional courier service was returned on 12.8.2011 as unserved with a remarks "location not correct". However the complainant specifically contended that the accused avoided the service of the said notice. The complainant has presented the present complaint on 9.9.2011 i.e after lapse of 15 days from the alleged service of notice and within 30 days thereafter. Thus on going through the contents of these documents, they disclose that the complainant had complied with all the requirements/ingredients of Sec.138 of N.I. Act.
14. As already stated the first limb of the defence of the accused is that the complainant has deliberately sent the notice to the wrong address in order to avoid the reply from the accused. Therefore the complainant has to establish that he had sent the notice to the correct address of the accused as contended by him. In support of the contention of the complainant in this regard, the complainant has produced membership form executed by the accused, resignation letter sent by the accused and one L.I.C renewal premium receipt as per Ex.P9, P11 and P14. As per the version of the complainant himself the notice sent through courier service returned back as with a remark "location not correct". In this regard if the address of the accused as shown in the legal notice i.e Ex.P4 along with Ex.P9 and P14 is considered, it is noticed that the complainant has not 13 C.C. No.27562/2012 given complete address of the accused in the legal notice. It is clear that while issuing notice the complainant has left out 'first main' in the address of the accused. On going through the evidence available on file, it is certain that the accused has specifically stated that her complete address was not shown in the notice sent and thereby notice was not served on her. On going through the contents of Ex.P9 and P14 it is clear that the complainant was well aware of the correct complete address of the accused, but for the reason best known to him, he has not opted to send the notice to the correct address of the accused. On conjoint reading of Ex.P4 to P8, P9 and P14, it is clear that while sending the notice, as put up by the accused, the complainant has left out 'first main' in the address of the accused. Therefore it cannot be held that the complainant had sent the notice to the correct address of the accused, the same was served on her.
15. So far as the service of notice is concerned, the learned counsel for the complainant relied upon the ruling reported in 2007 AIR SCW 3578, but it is pertinent to note that in this case the complainant has not sent the notice to the proper and correct address of the accused. Therefore he cannot take assistance of the said ruling and also the Provisions of Sec.27 of the G.C Act. The matte would have been different, if the notice was sent to the correct and 14 C.C. No.27562/2012 complete address of the accused. It is also to be noted that even the returned RPAD envelop produced before this court as per Ex.P5 also does not disclose that intimation of the registered letter was issued to the addressee and thereafter it was returned for any reason. As admitted by PW.1 himself notice was returned as wrong address. Under these attending circumstances, it cannot be held that notice was sent to the correct address of the accused as put up by the complainant. As discussed supra, the complainant had sent notice to the incomplete address of the accused which is known to him. In this regard, the learned counsel for the accused relied upon the ruling of our Hon'ble High Court reported in 2010 (3) KCCR 1950 in which it was held that " It was incumbent upon the complainant to have proved the service of notice on the accused. As admittedly the notice sent by registered post was not served on the accused and since the notice stated to have been sent by certificate of posting was not properly addressed, there cannot be a deemed service of notice. Therefore, the learned Magistrate is justified in holding that the complainant has not complied with the requirement of provision of sec.138 of N.I. Act".
16. In the light of the above decision if the facts of the present case are analyzed, as already discussed the complainant has not opted to send the notice to the correct address of the accused and therefore the ruling relied by the 15 C.C. No.27562/2012 learned counsel for the accused is applicable to the facts of the present case and therefore it cannot be held that the complainant had complied with necessary requirements of Sec.138 of N.I. Act as put up by the complainant. This court is also being guided by the ruling of the Hon'ble Patna High Court reported in 2013 (1) DCR 762 and on going through the said decision and facts of the present case, this court is of the considered view that the said decision also comes to aid of the accused, as the complainant has not given correct complete address of the accused. As already stated the matter would have been different, if the complainant sents the notice to the correct complete address of the accused. Thus considering all these aspects this court found substance in the contention of the accused as to non-service of the notice as put up by her. It is clear that though the complainant was well aware of the complete address of the accused, he has not sent the notice to the correct address of the accused and the same was returned as address was wrong. Therefore it has to be held that the complainant had not sent the notice to the correct address of the accused and thereby had not complied with necessary requirements of Sec.138 of N.I. Act. Hence in this angle the complaint is liable to be failed.
17. The second limb of the defence of the accused is that there was no any monitory transaction between herself 16 C.C. No.27562/2012 and the complainant and she had not issued any cheque in favour of the complainant for discharge of any debt or liability as there was no any debt/liability in favour of the complainant as put up by the complainant. The accused has specifically contended that the complainant persuaded her to have two wheeler and in connection with two wheeler loan transaction the complainant had taken eight blank cheques and misused the same in filing the present complaint. The complainant has denied the said defence of the accused. Now so far as the transaction, as put up by the complainant is concerned, except the assertion of the complainant and production of cheque and other related documents there is no any convincing and acceptable evidence as to the loan transaction as put up by the complainant. It is the specific contention and specific evidence of the complainant that the accused approached the complainant seeking hand loan of Rs.1 lakh and the complainant had paid Rs.45,000/- on 16.5.2011 and Rs.40,000/- on 26.5.2011 in cash and also paid Rs.15,000/- towards down payment to purchase the two wheeler by the accused. It is not in dispute that the accused had purchased two wheeler under hire purchase scheme of HDFC Bank. The complainant has not purchased any documents to show that he had paid Rs.15,000/- towards down payment for purchasing of vehicle by the accused as put up by him. In this regard the evidence of 17 C.C. No.27562/2012 the complainant is looked into, during his cross-examination he has stated that ¢£ÁAPÀ 16-05-2011 gÀAzÀÄ DgÉÆævÀ¼ÀÄ £À£Àß ºÀwÛgÀ §AzÀÄ gÀÆ.50,000/- ¸Á® PÉýzÀgÀÄ. £Á£ÀÄ gÀÆ.45,000/- ºÀt PÉÆnÖgÀÄvÉÛãÉ. This version of the complainant is totally inconsistent with the complaint averments as to loan transaction.
18. It is also noticed that the accused has specifically disputed the financial capacity of the complainant to lend the money. The complainant in his complaint or in his examination-in-chief nowhere stated as to how he had collected the amount of Rs.1 lakh to lend the same to the accused. However later he has produced two customer advice issued by Manappuram General Finance and Leasing Ltd., as per Ex.P12 and P13 to show that he had taken money from the said finance company by pledging gold. But on going through the said documents, it is noticed that the said documents are no way acceptable one and no importance could be given to it as the same is found to be not authenticated. If at all the case of the complainant is true in this regard he would have stated the same in the notice or at least in the complaint itself, but that was not done. It is also noticed from the evidence of the complainant that except the income derived from the membership of the organization he has no regular income 18 C.C. No.27562/2012 and he has no any other occupation also. Under these attending circumstances, the case of the complainant gets clouded and great suspicion.
19. As already stated the accused has specifically contended that she had given eight signed blank cheques to the complainant for purchasing two-wheeler by taking loan. As found in the complaint averments itself, the complainant himself advised the accused to purchase two wheeler on hire purchase scheme. But during the course of evidence, the complainant denied the suggestion put to his mouth to the effect that he himself introduced the shop to the accused to purchase TVS Scooty and arranged the vehicle loan. But it is the interesting to note that the complainant himself produced Proforma Invoice issued by Meghdooth Mobikes. If this is the fact, it is clear that the complainant himself played role in purchase of two wheeler by the accused. Even the complainant has produced the LIC renewal premium receipt of the accused but he has not explained how he has obtained the said document from the accused. Therefore on going through the entire evidence available on file, it clearly probablize the case of the accused that the complainant himself made arrangements to purchase two wheeler by the accused. As already stated absolutely there is no evidence to show that the complainant had paid any amount to the accused as put up by him.
19 C.C. No.27562/201220. With the above aspects, now the evidence available on behalf of the accused in this regard is looked into, the accused being DW.1 in her evidence specifically stated as to defence taken by her. In addition to that she has also produced stop payment letter issued by her as per Ex.D1 and also endorsement issued by the police for having lodged police petition against the complainant. From the contents of Ex.D1, it is clear that the accused had closed her account as on 28.6.2011 and there is clear reference as to cheque No.685770 and eight other cheque leaves. Admittedly the complainant presented the cheque for encashment on 25.7.2011 and the cheque in question was dishonoured for the reason "payment stopped by the drawer". Along with Ex.D1, the contents of Ex.D2 is looked into, it is clear that the accused had lodged police petition against the complainant on 4.7.2011 itself. Along with the police endorsement the complainant has also produced Xerox copy of the police petition lodged by her. Therefore it is crystal clear that before presenting the cheque itself the accused gave instruction to her banker to stop the payment and also filed police petition against the complainant. This being the fact, it is crystal clear that the complainant was well aware as to the case of the accused before presenting the cheque for encashment itself. Therefore if this documentary evidence along with evidence of the accused 20 C.C. No.27562/2012 are analyzed definitely they probablize the defence taken by the accused.
21. At this juncture, this court is also being guided by the another ruling of our Hon'ble High Court reported in 2013 (1) DCR 326 wherein it was held that "Respondent has to raise a probable defence - If there are circumstances to prove the probable defence that itself is sufficient to dismiss the complaint". In this case also as discussed supra the accused has made out her defence as more probable and convincing as against the case of the complainant. Therefore considering the entire oral and documentary evidence, it is clear that their arises serious doubt as to the very loan transaction itself as put up by the complainant and on the other hand the evidence placed before this court probabilize the defence taken by the accused and the same are found to be more convincing and acceptable one. As discussed earlier, since the complainant has failed to prove the compliance of requirement of Sec.138 of N.I. Act no presumption could be raised in favour of the complainant and the present complaint itself is not maintainable. Thus viewed from any angles, this court is of the considered view that the complainant has failed to prove the compliance of requirement of Sec.138 of N.I. Act so as to maintain the present complaint and also failed to prove the legally recoverable debt/liability from the accused in his favour as 21 C.C. No.27562/2012 put up by him. Therefore it goes without saying that the complainant has failed to prove Point Nos.1 & 2 in his favour. It is needless to say that when the complainant has failed to prove Point Nos.1 & 2 as contended by him it goes without saying that the complainant is not entitled for any relief as sought for in this complaint. Hence, point Nos.1 to 3 are required to be answered in negative and answered accordingly.
22. Point No.4: For the reasons discussed in connection with Point Nos.1 to 3 this court proceed to pass the following....
ORDER Acting under Section 255(1) of Cr.PC accused is hereby acquitted for the offence punishable under Section 138 of Negotiable Instrument Act.
The bail bond of accused stands cancelled. The cash security deposited by the accused is ordered to be refunded in favour of the accused in accordance with law.
(Dictated to the stenographer, typed by him, transcript corrected by me and pronounced in the open court on this the 23rd Day of March, 2017) (SHRIDHAR GOPALAKRISHNA BHAT) XIV ADDL. C.M.M., BENGALURU 22 C.C. No.27562/2012 ANNEXURE Witnesses examined for the complainant:
PW.1 : Sri. C. Ramu
PW.2 : Smt. Leelavathi .T
Witnesses examined for the defence:
DW.1 : Smt. Angela Priya Harris
Documents marked for the complainant:
Ex.P1 : Cheque
Ex.P1(a) : Signature of the accused
Ex.P2 : Bank endorsement
Ex.P3 : Postal receipt
Ex.P4 : Legal Notice
Ex.P5 : Returned postal cover
Ex.P6 : Returned notice
Ex.P7 : Returned courier cover
Ex.P8 : Returned notice
Ex.P9 : Membership Form
Ex.P10 : Proforma Invoice
Ex.P11 : Letter to the President dtd.25.6.2011
Ex.P12 & 13 : Customer advice
Ex.P14 : LIC - Renewal Premium Receipt
Documents marked for the defence:
Ex.D1 : Stop payment advice
Ex.D1(a) : Resignation letter dtd.5.7.2011
Ex.D2 : Acknowledgement
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU
23 C.C. No.27562/2012