Bangalore District Court
K.N.Manjula vs P.Srinivas on 9 March, 2020
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 9th day of March - 2020
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.4597/2015
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : K.N.Manjula,
W/o.P.Srinivas,
Aged about 53 years,
R/at No.Door No.309, 7th Main,
1st Cross, Near J.P.Park,
Vijayanagar, Bengaluru-40.
(Rep. by Sri.Keshava Kumar.B, Adv.)
V/S
Accused : P.Srinivas,
S/o.R.Padmaraju,
Aged about 55 years,
R/at. 'Asritha', No.36,
6th Cross, 1st Main Road,
Press Layout Malathahalli,
Ullal Main Road, Bengaluru-16.
(Rep.by Sri.Balaraj.M.V, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Acquitted.
DATE OF ORDER : 09.03.2020.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
Judgment 2 C.C.No.4597/2015
JUDGMENT
The complainant has presented the instant complaint against the accused on 20.12.2014 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheque of Rs.25 lakhs.
2. The facts given raised to this private complaint are as follows:
The accused and complainant are the husband and wife and accused during the subsistence of marriage started leading adulterous and extramarital relationship with one Sujaya. The complainant was not fully aware as to since how long this extramarital relationship of her husband with Sujaya is being continued. When the complainant objected to this unholy nexus of her husband and to restore his happy bygone marital days, with the complainant, the accused threatened to disassociate and divorce the complainant.
The complainant has further alleged that, all of sudden deserted the complainant and instead started staying with Smt.Sujaya and her son. The complainant being a home maker has no source of income to maintain herself and she was dependant on her husband as he was employed at HMT. The Judgment 3 C.C.No.4597/2015 complainant finds it extremely difficult to maintain her life, as she is now dependent on her daughter and son-in-law for her day to day expenses.
The complainant has further averred that, when the matter stood thus the complainant foreseeing foul play of Sujaya and accused in alienating of residential site belongs to complainant. The complainant filed in suit O.S.No.3/2013 before the Hon'ble IV Addl. Family Judge, at Bengaluru seeking for injunction as against the immovable property bearing No.418A formed by HMT Employees Co-operative House Building Society Ltd., Nagasandra - Nelakadhirenahalli Village, Yeshwanthpura Hobli, Bengaluru North Taluk, measuring East to West 80.0 feet or 24.38 Meters and North to South 42+34/2 feet or 12.80 + 10-36/2 meters, in all 3040 square feet or 282.32 square meters. Since, complainant had legal right as the entire sale consideration was given by her father to accused, while site was allotted to the accused. The accused assured the complainant's father that, he would convey the said site in the name of complainant, but in vain.
The complainant has further contended that, on service of notice from the court, the accused appeared through his counsel and undertook not to alienate or create charges over the said Judgment 4 C.C.No.4597/2015 property. But to the utter dismay of complainant, the accused clandestinely with aid and support of said Sujaya and her son Vishwas, sold the above mentioned site to one Smt.Preethi Patel by executing the registered sale deed dated:19.06.2013 during the pendency of the suit, for sale consideration of Rs.90 lakhs. The accused along with the said Sujaya and her son Vishwas have single handedly swindled the entire sale consideration, depriving the vested legal right of complainant.
The complainant has further alleged that, thereafter, the accused at the intervention of well-wishers requested to settle the difference and dispute and accordingly, he agreed to return sum of Rs.50 lakhs being received from sell proceeds of site detailed above. The accused voluntarily executed compromise petition under Order 23 rule 3 read with Section 151 of CPC in O.S.No.36/2013 and accordingly, the said application was notarized before the Notary Public on 22.03.2014.
The complainant has further averred that, as per the agreed voluntarily to repay sum of Rs.50 lakhs to the complainant. In order to discharge the liability, the accused got issued two post dated cheques bearing Nos.450470 and 450471 both drawn on State Bank of India, Vijayanagar Branch, for sum of Rs.25 lakhs Judgment 5 C.C.No.4597/2015 each dated:05.04.2014 and 05.10.2014 and instructed the complainant to present the said cheques on the aforementioned dates. The complainant has filed a complaint in C.C.No. 19287/2014 on the file of XXIII ACMM Court, at Bengaluru, and the same was pending consideration.
The complainant has further contended that, accordingly, she presented the said cheque bearing No.450471 drawn on State Bank of India, Vijayanagar Branch, for sum of Rs.25 lakhs for realization on 05.10.2014. As per bank shara dated:14.10.2014, the said cheque came to be dishonoured for the reasons "Payment Stopped by Drawer". Thereafter, the complainant through her counsel got issued legal notice to the accused on 06.11.2014. The accused in turn, gave reply dated:28.11.2014. Despite that, the accused not paid the amount covered under the cheque. Thereby, he committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
3. After receipt of the private complaint, my predecessor in office took the cognizance and got registered the PCR and recorded the sworn statement. Since made out prima-facie Judgment 6 C.C.No.4597/2015 grounds to proceed against the accused for the alleged offence, got issued process.
4. In response to the summons, the accused appeared through his counsel and obtained the bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to him, wherein, he denied the same and claimed to have the defence.
5. To prove the case of the complainant, she herself choosen to examined as PW.1 and got marked Exs.P1 to P6. The PW.1 was subjected for cross-examination by the advocate for the accused. In the cross-examination of PW.1, accused counsel got confronted three documents and same are marked as Exs.D1 to D3.
6. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein the accused denied the same and the answer given by him was recorded. In support of the defence, the accused himself was examined as DW.1. In the cross-examination of DW.1, complainant counsel got confronted one document and same is marked as Ex.P7.
Judgment 7 C.C.No.4597/2015
7. Both side counsels have addressed their arguments. The complainant counsel has also submitted his detailed written arguments.
8. On going through the rival contentions, based on the substantial evidence available on record, the following points have been arising for determination:
1) Whether the complainant proves beyond the reasonable doubt that, the amount made mentioned in Ex.P1 cheque for sum of Rs.25 lakhs is the legally existing debt payable by the accused to the complainant?
2) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?
3) What Order?
9. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Negative Point No.2 : In the Negative Point No.3 : As per final order, for the following:
REASONS UNDISPUED FACTS
10. The fact that, the accused is the husband and complainant is the wife and the addresses made mentioned in the cause title Judgment 8 C.C.No.4597/2015 they have resided is not been disputed. The fact that, the complainant and accused out of their wedlock got daughter by name Vinutha.S and she came to be married to one Sudhakar is not in dispute. The fact that, from those daughter and son-in-law, they have got grand-daughter is not in dispute.
The fact that, the accused was the farmer employee of HMT Company and while working there by applying for grant of site from HMT Employees Co-operative House Building Society Ltd., allotted with one site at Nagasandra Village is not in dispute. The fact that, earlier, the complainant on 16.02.2013 had lodged complaint before the Vijayanagar Police Station as per Ex.D1 is not in dispute. The fact that, the contents and allegations as well as averments made in the Ex.D1 is not in dispute.
The fact that, the complainant had instituted suit in O.S.No.36/2013 before the Hon'ble IV Addl. Family Court for the relief of maintenance and permanent injunction is not in dispute. The fact that, in the said suit, in the schedule, the complainant had cited the property situated at Nagasandra Village is not in dispute. The fact that, the complainant again lodged complaint against the accused on 27.01.2014, thereafter, the jurisdictional police got registered FIR against the accused is not in dispute. The fact Judgment 9 C.C.No.4597/2015 that, the accused filed a private complaint in PCR No.9484/2014 before the Hon'ble XXIV ACMM, Bengaluru for the alleged offence under Sections 323, 341, 384, 504 r/w Section 34 of IPC against the complainant, her daughter, son-in-law and other 5 persons is not in dispute. The fact that, the genuineness of documents obtained under the Information Act, is not in dispute. The fact that, the complainant had filed petition before the Hon'ble Family Court as per Ex.D3 is not in dispute. The fact that, the complainant had filed the complaint under Section 12 of PWDV Act, 2005, against the accused and Vishwas in Crl.Misc.No.74/2014 before the learned IV MMTC, Bengaluru, is not in dispute.
The fact that, accused lodged complaint before the Commissioner of Police against the complainant and others is not in dispute. Likewise, the accused lodged complainant before the Deputy Commissioner of Police as well as Hon'ble Chairman of Human Rights Commission is not in dispute. The fact that, the accused gave stop payment instruction to his banker viz., State Bank of India, Vijayanagar Branch, Bengaluru is not in dispute. The fact that, the accused got issued legal notice on 04.04.2014 to the complainant prayed for return of cheques is not in dispute. The fact that, the accused gave reply on 28.11.2014 to the Judgment 10 C.C.No.4597/2015 complainant sent by post is not in dispute. The document is the complaint lodged by the accused on 16.02.2016 before the Police Inspector of Vijayanagar Police Station is not in dispute. The fact that, the accused by applying for voluntarily retirement got retired from the service, HMT Employees Co-operative House Building Society Ltd., allotted site No.418 to the accused name on 29.07.1995 is not in dispute. So also, the correspondence made in connection to the said site between said Society with accused till handed over the possession as found in enclosed documents is also not in dispute. As per the said document, the registration as well as possession was handed over to the accused dated:02.01.1996 by the said society is not in dispute. As per the said document it also discloses the said sale transaction is over and got registered in the name of accused is not in dispute.
The fact that, entries found in bank statement produced by the accused pertaining to the UCO Bank, wherein, discloses the payment is not in dispute. The fact that, the pay slip pertaining to the accused for the period December, 2012 is not in dispute. The fact that, the accused is suffering from brain haemorrhage and other ailments as found in medical report including heart problem is not in dispute.
Judgment 11 C.C.No.4597/2015 Similarly the fact that, the questioned cheque at Ex.P1 as well as signature found therein is of the accused is not in dispute. The fact that, the said cheque came to be dishonoured for the reasons made mentioned in the banker slip at Ex.P2, payment stopped by drawer is not in dispute. The fact that, service of legal notice to the accused is not in dispute, as admitted by the accused in his 313 of Cr.P.C. statement.
11. POINT NOs.1 and 2: Since both the points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.
The PW.1 to prove her case choosen to examined herself and filed affidavit by reiterating the complaint averments in toto, and produced the documents at Exs.P1 to P7, they are:
a) Ex.P1 is the cheque bearing No.450471 issued by the accused for sum of Rs.25,00,000/-
dated:05.10.2014, drawn on State Bank of India, Vijayanagar Branch, Bengaluru.
b) Ex.P1(a) is the alleged signature of accused.
c) Ex.P2 is the Bank Memo dated:14.10.2014.
d) Ex.P3 is the Legal Notice dated:06.11.2014.
e) Ex.P4 is the Postal receipt.
f) Ex.P5 is the Postal Acknowledgment Card.
g) Ex.P6 is the reply notice dated:28.11.2014 issued by the accused through his counsel to the complainant counsel and Judgment 12 C.C.No.4597/2015
h) Ex.P7 is the certified copy of application under Section 23 rule 3 r/w Section 151 of CPC.
The PW.1 was subjected to the cross-examination by the advocate for the accused.
12. In order to prove the defence of the accused, he himself choosen examined as DW.1 and produced the documents at Exs.D1 to D3. They are:
a) Ex.D1 is the certified copy of complaint dated:16.02.2013 lodged by complainant herein before the Vijayanagar Police Station.
b) Ex.D1(a) and D1(b) are the signatures of
complainant.
c) Ex.D2 is the certified copy of complaint
dated:27.01.2014 lodged by complainant herein against accused, Smt.Sujaya and Vishwas before the Vijayanagar Police Station.
d) Ex.D2(a) is the signature of complainant.
e) Ex.D3 is the certified copy of plaint in O.S.No.36/2013 filed by complainant herein against accused before the Hon'ble Family Court, Bengaluru.
f) Ex.D3(a) is signature of complainant.
13. After cross-examination of PW.1, the incriminating evidence made against the accused was read over and explained to him as required under Section 313 of Cr.P.C., Wherein, he denied the incriminating evidence made against accused and to prove his probable defence, apart from cross-examining the PW.1, himself Judgment 13 C.C.No.4597/2015 entered into witness box and choosen to filed affidavit evidence. The affidavit evidence submitted by the accused is not been opposed by the advocate for complainant, hence, affidavit evidence is taken on record as the evidence of accused on oath and examined him as DW.1. In the affidavit evidence of the accused, in brief he contended that:
The complainant has filed the false case against him. The accused also contended that, the complainant is his wife, his daughter and son-in-law forming syndicate amongst themselves with a illegal motive have started to harass accused for extracting his hard earned money and also, all of them are forcing him to register a immovable property standing in his name in their names. The accused further submitted that, they wanted the accused to thrown out from their family after getting the property registered in their names, since, the accused suffering from brain haemorrhage and other age related ailments such as, diabetes, heart disease and high blood pleasure and till the date, the accused undergoing treatments for the same.
The accused has further contended that, he married the complainant on 29.05.1985, out of the said wedlock, their daughter by name Vinutha.S is begotten on 02.06.1984.
Judgment 14 C.C.No.4597/2015 Thereafter, the accused performed the marriage of his daughter with one Sudhakar, who is son-in-law and they have also blessed with female child and the accused conducted the naming ceremony of his grand-daughter by bearing the entire expenses as a dutiful father and grand-father.
The accused further contended that, he is a retired employee of HMT Company, during his employment in the said company, the HMT Employees Co-operative House building Society Ltd., had formed sites for its employees and as he being a member of the said society, as site was allotted in his favour at Nagasandra Village. The accused had purchased the said site on obtaining loan from out of his P.F. savings and the balance amount were paid by him in installments every month. The accused submitted that, out of greed, the complainant herein, his wife, daughter and son-in-law forming a syndicate meet their illegal motive of grabbing his self-acquired immovable property and forcing and threatening him to register the side in the name of complainant. The accused did not heed to their illegal acts, therefore, out of vengeance, the complainant and her syndicates stated above, had filed the cases against the accused with a malafide intention and coerce him to heed to their illegal demands.
Judgment 15 C.C.No.4597/2015 The accused has further alleged that, the complainant had totally neglected the accused and started the further harass him by colluding with the syndicate and all of them have failed to grab money and immovable property wrongfully as such, his life was in danger and therefore, he was constrained to leave the house to safe his life. Thereafter, they have also filed a complaint before the Vijayanagar Police Station on 16.02.2013.
The accused has also contended that, the complainant had preferred original suit before the Hon'ble VI Addl. Family Court in O.S.No.36/2013 and also she preferred an Inter Locatory Application against the accused restraining him from alienating his self-acquired property. The said application came to be rejected and I.A. was dismissed. Further, the complainant had failed to secure an order of non-alienation against the accused and immediately preferred a false complaint against him. When the matter is in the court, the complainant had colluded with the police of Vijayanagar, have filed the false case against him on 27.01.2014 for the offence punishable under Sections 498(A), 420 r/w 34 of IPC before the Vijayanagar Police Station.
The accused has further seriously alleged that, on 22.03.2014 at about 6.30 am, while he returned from walk, two Judgment 16 C.C.No.4597/2015 constables with one women Sub-Inspector attached to the Vijayanagar Police Station were there in front of his house along with the complainant, her daughter and son-in-law and at their instance the Vijayanagar Police have arrested the accused along with Vishwas and S.Sujaya with regard to Crime No.31/2014 for the offence punishable under Section 420 and 498(A) r/w Section 34 of IPC, the complainant and her syndicate stated above, brought the accused and Vishwas as well as S.Sujaya to the Police Station at around 7.00 am. Thereafter, every half an hour the police constables used to came infront of him, complainant, her son-in-law and daughter including the police were threatening the accused and they were insisted the accused forcibly to settle the matter by paying an amount to the complainant, otherwise, the accused be arrested and will sent to jail and also threatened, to fit the accused in some other cases. The accused is a heart patient and also suffering from diabetic and brain hemorrhage, as such, he was not in a position to tolerate torture, though intimating the same, the complainant and police officers forcibly made to settle the above matter for an amount of Rs.50 lakhs and joint affidavit was also prepared and was taken to notary and forced him to file the joint affidavit. The complaint was preferred by the complainant in the Vijayanagar Police Station, the said complaint Judgment 17 C.C.No.4597/2015 was not registered and after securing statement of the accused, the complainant an endorsement was issued, to that effect stating that, the matter was civil in nature and directed to approach the Civil Court.
The accused further alleged that, thereafter, at about 6.00 p.m. a joint affidavit was preferred by the complainant, her daughter and son-in-law, all of them colluding with the aforesaid police officers have forcibly took 2 cheques bearing Nos.450470 and 450471 drawn on Bank of India, Vijayanagar Branch, Bengaluru for sum of Rs.25 lakhs each dated:05.04.2014 and 05.10.2014 from the accused. Thereafter, they took the accused before the Notary Public and took signature at about 9.30 p.m. after this at around 10.00 p.m. the said police officers released the accused, Vishwas and S.Sujaya from the Police Station.
The accused has further alleged that, he paid sum of Rs.4 lakhs, which was received by him, from his father by name R.Padmaraju, after dividing the sale of house property to the complainant, vide cheque No.180449 drawn on UCO Bank. The accused also gave the LIC maturity cheque for sum of Rs.1,50,000/- and amount of Rs.2,50,000/- cheque postal life insurance, in total accused paid Rs.8 lakhs to the complainant.
Judgment 18 C.C.No.4597/2015 The complainant was kept the said amount in Kannika Parameshwari Credit Co-operative Society till today, she used to collect money interest at Rs.10,000/- p.m. The accused been retired from the job by gave V.R.S. to the company, on account of his ill-health. In the application submitted on 24.02.2012, the same has been accepted on 30.03.2013. The accused already retired from the company and will get monthly pension of Rs.1,500/- and same is yet to be received.
The accused has further alleged that, thereafter, immediately with regard to the above said harassment, illegal acts and ill-treatment given by the complainant and police officials, he preferred a complaint before the Hon'ble Commissioner of Police and Deputy Commissioner of Police and the Hon'ble Chairman of Human Rights Commission against the complainant, his daughter, son-in-law and police officers of Vijayanagar Police Station and also sent a notice to the complainant for return of those cheques and also sent a letter intimated to the bank to make stop payment on the aforesaid cheques.
The accused has further submitted that, in the meantime, he filed private complaint in PCR No.9184/2014 before the Hon'ble XXIV ACMM against the complainant, Sudhakar, Ashok Judgment 19 C.C.No.4597/2015 Kumar, Vinutha, Yoganandamurthy Police constable, Narasimhamurthy Police Constable, Venkatesh-PSI and Ragavendra Inspector of police for the offence punishable under Section 384, 504 and 506 r/w Section 34 of IPC. After receipt of the legal notice sent by the complainant, the accused gave reply to the same. The complainant had filed domestic violence and case was registered against the accused before the learned IV MMTC, in C.Misc.No.74/2014 with a prayer of maintenance and compensation.
The accused has further contended that, he not issued any cheque to the complainant, at any point of time as alleged in the complaint and evidence. The complainant is a fraudster trying to make fast money by misusing law and premises and also the precious time of this court by colluding with his daughter, son-in- law with his brother-in-law. Hence, he prayed for dismissal of the complaint. The accused was subjected for cross-examination by the advocate for complainant.
14. In this case, the advocate for the complainant choosen to cross-examined the DW.1. No doubt, this is case filed by the complainant under Section 138 of Negotiable Instruments Act, based on the questioned cheque at Ex.P1. Hence, as per Judgment 20 C.C.No.4597/2015 Sections 118 and 139 of Negotiable Instruments Act, it has to be presume that, the questioned cheque issued by the accused to the complainant for discharge of existence of legally recoverable debt, unless and until contrary prove. Therefore, it made clear that, it is the initial burden on the accused to prove his probable defence to rebut the case of complainant. In that regard, the accused not only denied the averments and allegations of the complaint by way of cross-examining the PW.1, so also by way of suggestion put forth his defence. Even, in the 313 of Cr.P.C. statement also the accused denied the incriminating evidence made out and admitted the receipt of legal notice.
15. That apart, to prove his probable defence, himself filed affidavit evidence and produced the documents at Exs.D1 to D3 through PW.1, when cross-examined. The DW.1 was also subjected for cross-examination. During his cross-examination, he deposed that, questioned cheque and signature is of him and rest of fillings are not made by his hand writing. He denied the suggestion that, he himself filled the cheque by mentioning the amount of Rs.25 lakhs, but he deposes clarificatory that, he mentioned in his affidavit stating that, those cheques were taken on force. Even he denied that, those cheques were got filled forcibly by the accused, himself was stated in his affidavit are Judgment 21 C.C.No.4597/2015 known to him earlier and the said suggestion is denied by the DW.1.
16. During the further cross-examination of DW.1, he clearly denied the suggestion that, in the Hon'ble Family Court, the accused got compromise the matter with the complainant and in that regard, for payment of Rs.25 lakhs, he got issued 2 cheques to the complainant. The DW.1 clearly denied the execution and issuance of questioned cheque in favour of complainant for payment of Rs.25 lakhs each, involved in both the case. In the further cross-examination, DW.1 to the question suggested by the complainant that, would he accepted the compromise entered before Notary and accused got put his signature, the DW.1 has clearly deposed that, forcefully obtained his signature.
17. No doubt, in his further cross-examination he deposed that, regarding forcefully took signature to the cheques as well as compromise petition, he not raised the said contention in the M.C.No.74/2014. Even, he admitted that, examined notary in that case. During his cross-examination he specifically stated that, on which compelling circumstances he singed the compromise petition. The relevant portion of cross-examination of DW.1 runs thus:
Judgment 22 C.C.No.4597/2015 "£Á£ÀÄ £ÉÆÃljAiÀĪÀgÀ PÀbÉÃjAiÀįÉèà gÁf ¸ÀAzsÁ£ÀzÀ CfðAiÀÄ£ÀÄß AiÀÄxÁyð¹zÉÝãÉAzÀgÉ ¸Àj. ¸ÁQëAiÀÄÄ ¸ÀévÀB ªÀÄÄAzÀĪÀgÉzÀÄ DvÀ£À PÀbÉÃjAiÀÄ°è PÉêÀ® ¸À»AiÀÄ£ÀÄß ªÀiÁvÀæ ªÀiÁrzÀÄÝ, CªÀÅUÀ¼À£ÀÄß oÁuÉAiÀÄ°è vÀAiÀiÁj¸À¯ÁVvÀÄÛ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. D gÁf CfðAiÀÄ°è £À£Àß ªÀÄvÀÄÛ ¦AiÀiÁð¢AiÀÄ ªÀQîgÀÆ PÀÆqÀ ¸À»AiÀÄ£ÀÄß ªÀiÁrzÁÝgÉ JAzÀgÉ ¸ÁQëAiÀÄÄ £À£Àß ªÀQîjAzÀ oÁuÉAiÀÄ°è §®ªÀAvÀªÁV ¸À» ¥ÀqÉAiÀįÁ¬ÄvÀÄ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ."
18. The DW.1 in his cross-examination admitted that, the compromise petition was attested from the notary office. But he volunteers that, in the office of notary, only signature of him took and it was prepared in the Police Station. It was suggested to him that, in the compromise petition, accused and complainant advocate were also signed, to the same DW.1 has deposed that, from his advocate took signature forcefully. From the said say of DW.1, he reasserted that, signature to the compromise petition were secured forcefully from the accused as well as his advocate. The complainant has not extracted any favourable words from the said cross of DW.1, as to the accused voluntarily entered into compromise with the complainant.
19. In the cross of DW.1, it was also suggested to the DW.1 that, regarding arrest of the accused is not mentioned in the station diary maintained in the Police Station. But DW.1 has Judgment 23 C.C.No.4597/2015 deposed that, the police, who examined before the earlier courts has deposed, not mentioned about kept the accused in the Police Station by way of arrest, but DW.1 has clearly deposed that, the said police has not deposed, but accused was made kept in the Police Station from morning till night. Thereby, the accused also deposed that, forcibly he kept in the Police Station based on the complaint lodged by the complainant.
20. In the 1st day of cross-examination, the PW.1 has deposed that:
"DgÉÆæ «gÀÄzÀÝ fêÀ£ÁA±À ªÀÄvÀÄÛ «ªÁºÀ «ZÉÑÃzÀs£À zÁR°¹zÀ ¥ÀæPÀgÀtPÉÌ ¸ÀA§A¢ü¹zÀAvÉ ±Á±ÀévÀ ¥ÀjºÁgÀªÀ£ÀÄß vÀ¯Á gÀÆ.25 ®PÀëUÀ¼À JgÀqÀÄ ZÉPïUÀ¼À£ÀÄß DgÉÆæ £À£ÀUÉ ¤ÃrzÀÝgÀÄ. ¸ÀzÀj ZÉPÀÌ£ÀÄß DgÉÆæ £À£ÀUÉ ºÀ¸ÁÛAvÀj¹zÀ §UÉÎ ªÀÄvÀÄÛ AiÀiÁªÀ «µÀAiÀÄPÉÌ ¸ÀA§AzÀs¥ÀlÖAvÉ D ZÉPï£ÀÄß £À£ÀUÉ ¤ÃqÀ¯ÁVvÀÄÛ JA§ §UÉÎ £ÉÆÃlj PÀbÉÃjAiÀÄ°è zÁR¯É vÀAiÀiÁj¹, £À£Àß ªÀÄvÀÄÛ DgÉÆæAiÀÄ ¸À»AiÀÄ£ÀÄß ¥ÀqÉ¢gÀÄvÁÛgÉ. DgÉÆæAiÀÄ£ÀÄß £ÁªÀÅ zÁR°¹zÀ ¥ÀæPÀgÀtzÀ°è zÀ¸ÀÛVj ªÀiÁrzÁUÀ, DgÉÆæ £À£ÉÆßA¢UÉ gÁf ªÀiÁrPÉƼÀÄîvÉÛãÉAzÀÄ w½¹, ªÀQîgÀ PÀbÉÃjAiÀÄ°è gÁf ªÀiÁvÀÄPÀvÉ ªÀiÁr, ¸ÀzÀj zÁR¯ÉAiÀÄ£ÀÄß vÀAiÀiÁj¸À¯ÁVvÀÄÛ, DgÉÆæAiÀÄ£ÀÄß AiÀiÁªÀ ¢£ÁAPÀ zÀ¸ÀÛVj ªÀiÁqÀ¯ÁVvÀÄÛ J£ÀÄߪÀ ¢£ÁAPÀ £É£À¦®è. DgÉÆæAiÀÄ£ÀÄß zÀ¸ÀÛVj ªÀiÁrzÁUÀ £ÁªÀÅ ªÀÄ£ÉUÉ ºÉÆÃzɪÀÅ. §½PÀ DgÉÆæ PÀqɬÄAzÀ £ÉÆÃlj PÀbÉÃjUÉ gÁf ªÀiÁr¸ÀĪÀ ¸ÀA§AzÀs Judgment 24 C.C.No.4597/2015 £À£ÀߣÀÄß §gÀ ºÉýzÀÝgÀÄ, DUÀ £ÁªÀÅ £ÉÆÃlj PÀbÉÃjUÉ ºÉÆÃVzÉݪÀÅ. DgÉÆæAiÀÄ£ÀÄß ªÉÆzÀ® ¨Áj zÀ¸ÀÛVj ªÀiÁrzÁUÀ £Á£ÀÄ, £À£Àß ªÀÄUÀ¼ÀÄ, C½AiÀÄ ¸ÀºÀ EzÀÝgÀÄ DzÀgÉ ¸ÀªÀÄAiÀÄ £É£À¦®è, £Á£ÀÄ zÁR°¹zÀ EvÀgÀ ¥ÀæPÀgÀtUÀ¼À ¸ÀASÉå £É£À¦®è,"
21. As per say of PW.1, she deposed that, in respect of the petition and case filed by her against the accused for maintenance and divorce, for the payment of permanent alimony of Rs.50 lakhs by accused gave cheques for Rs.25 lakhs each. In the said testimony, she also deposed that, in respect of the purpose, the cheques handed over by the accused to the complainant, it was the document prepared in the office of the notary and obtained the signatures of the complainant and accused. Even, she deposed that, in a case filed by her against the accused, after the accused got arrested, he intimated the complainant, stating that, he would compromise the matter and hence, compromise talk were made in the office of the advocate and got prepared document. It made clear that, after lodging complaint by the accused, police arrested the accused and in pursuance of the same only, the PW.1 has deposed, accused came with the proposal of compromise and got prepared the document in the office of the advocate. The factum of police have arrested the accused is been proved in the evidence of PW.1. Even, the said evidence, she deposed that, Judgment 25 C.C.No.4597/2015 she does not remember the date, when accused was arrested. She also deposed that, when accused got arrested, she went to house, later, from the side of accused advocate for the purpose of compromise the matter asked the complainant to came to the office of the notary. Later, she went to the office of the notary.
22. More particularly she admitted, first time when accused was arrested, she, her daughter and son-in-law were there, she does not remember the time and she also deposed, she does not remember the particulars of other cases filed by her. The said evidence made clear that, on the one stretch, she deposes for the payment of permanent alimony, accused gave cheque for Rs.50 lakhs and the same was given consequent to the complaint lodged by her, when police have arrested the accused have made the settlement. Therefore, it made clear that, on the pursuance, complainant, her daughter and son-in-law brought the police and arrested and brought him to the Police Station as alleged by the accused is proved. Though, in the evidence she deposes that, in the further cross-examination, she stated that:
"£À£Àß ¥ÀæªÀiÁt ¥ÀvÀæzÀ°è §gÉzÀ «µÀAiÀÄ UÉÆvÀÄÛ. CzÀgÀ°è PÁtô¹zÀAvÉ DgÉÆæAiÉÆA¢UÉ DzÀAvÀºÀ gÁf Cfð ºÁUÀÆ EvÀgÉ zÁR¯ÉUÀ¼À£ÀÄß ºÁdgÀÄ¥Àr¹®è JAzÀgÉ ¸ÀjAiÀÄ®è. DgÉÆæ Judgment 26 C.C.No.4597/2015 £À£ÉÆßA¢UÉ gÁf ªÀiÁrPÉƼÀÄîvÉÛãÉAzÀÄ £ÉÆÃlj PÀbÉÃjUÉ PÀgɬĹ, F JgÀqÀÄ ¥ÀæPÀgÀtUÀ¼À°è ºÁdgÀÄ ¥Àr¹gÀĪÀ ZÉPÀÄÌUÀ¼À£ÀÄß fêÀ£ÁA±À ¤ÃqÀĪÀ ¸À®ÄªÁV PÉÆnÖzÀÝgÀÄ.
¥Àæ±ÉßB gÁf ¸ÀAzsÁ£ÀzÀ zÁR¯ÉAiÀÄ°è K£ÀÄ §gÉ¢zÉ JAzÀÄ UÉÆvÁÛ? GvÀÛgÀB DgÉÆæ gÁf ªÀiÁrPÉƼÀî®Ä PÀgɬĹ, ºÀt PÉÆqÀÄvÉÛãÉAzÀÄ vÀ¯Á gÀÆ.25,00,000/- UÀ¼ÀAvÉ JgÀqÀÄ ZÉPÀÄÌUÀ¼À£ÀÄß, MlÄÖ gÀÆ.50,00,000/- fêÀ£ÁA±À ¤ÃqÀ®Ä PÉÆnÖgÀÄvÁÛgÉ."
23. Though, in the earlier cross-examination the PW.1 has deposed, for payment of Rs.50 lakhs as permanent alimony, the accused got issued questioned cheque as well as cheque involved in another case. But in the further cross-examination also she specifically stated that, the questioned cheque issued by the accused for the purpose of payment of maintenance. She never stated that, as alleged in the complaint, accused gave questioned cheque for payment of Rs.50 lakhs towards the part of sale consideration, as the father of the complainant had paid money to purchase the said property. Even, in the complaint does not pleaded that, in respect of payment of permanent alimony, the accused got issued questioned cheque. Oral evidence of PW.1 is contradicts to her pleading, as to the alleged transaction made out in the complaint. Therefore, it made clear that, though there was serious allegation, as to the questioned cheque was issued by the Judgment 27 C.C.No.4597/2015 accused for payment of Rs.50 lakhs, as the amount in respect of the amount received by the father of the complainant.
24. During the course of cross of DW.1, the advocate for the complainant has tendered application filed under Section 23 Rule 3 r/s Section 151 of CPC before the Hon'ble IV Addl. Family Judge, at Bengaluru in O.S.No.36/2013 and on seeing the same, the accused has deposed that, the advocate for the complainant got prepared the same and he on force sign the said document. As per the say of complainant, the said Ex.P7 compromise petition was entered into between complainant and accused. On meticulous perusal of the Ex.P7, it discloses, affidavit is attached to the same. On going through the said affidavit, it discloses that, the complainant and accused are the deponents. In the said affidavit it was stated that, as per registered sale deed dated:19.06.2013, the accused sold his property for Rs.60 lakhs in favour of one Mrs.Preethi Patel. The further paras discloses, the accused was admitted that, the allotment of the said property/site made in his favour out of the amount paid by father of the complainant as sale consideration. The accused also agreed to pay the portion of sale consideration for the tune of Rs.50 lakhs to the complainant by way of cheques bearing Nos.450470 and 450471 dated:05.04.2014 and 05.10.2014 respectively for sum of Judgment 28 C.C.No.4597/2015 Rs.25 lakhs each before the said witnesses. Though there was mentioning of admission made by the accused, as to the payment has made to purchase the property, out of the money received from the father of complainant, but the document produced by the accused under the memo for list of documents dated:06.12.2019, which are the certified of the document obtained from C.C.No.19287/2014, the documents wherein, it was marked at Exs.D19 and D20, it made clear that, all the documents stood in the name of accused.
25. On meticulous perusal of those documents, though it was not marked before this court, this court has taken judicial notice. The Exs.D19 and D20 produced in C.C.No.19287/2014, it made clear that, before the marriage of accused with the complainant, he applied for allotment of site before the HMT Employees Co- operative House Building Society Ltd., and subsequently as found in attached document at Exs.D19 and D20, accused had paid the premium and every correspondence were made by the society in the name of accused and also discloses, allotment made in the name of accused. Those documents does not discloses, the name of the father of complainant as well as payment particulars made by him. Therefore, no value can be attached, mere because of mentioned the contents in para No.3 of affidavit Judgment 29 C.C.No.4597/2015 produced at Ex.P7. Though it was contended about the investment made by the father of the complainant in purchase the property for payment of sale consideration, either in the affidavit or during the course of cross of DW.1, there is no suggestion made by the complainant side, as to how much amount was paid as sale consideration to the accused, is not been specified. Mere because of insertion of such kind of contention, by way of admission, it does not mean that, the complainant's father had paid the sale consideration.
26. That apart, in para No.4 of the affidavit attached to Ex.P7, it also contended, handed over 2 cheques for Rs.25 lakhs each in favour of complainant, while filing compromise petition before the competent court by way of demand draft. The said contention also disclosed, sum of Rs.25 lakhs agreed to be paid by the accused to the complainant through demand draft on 05.04.2014 before the court, while filing the Ex.P7 compromise petition. The said contents also disclosed, on the movement of accused handed over the demand drafts for Rs.25 lakhs in favour of complainant on 05.04.2014, the complainant was to return one post dated cheque upon receipt of 1st installment. On the said date, both the parties have agreed to file diverse petition under Section 13B of Hindu Marriage Act. As per the contents made in Judgment 30 C.C.No.4597/2015 Ex.P7 affidavit, it also contended, it was the conditional compromise was entered into between the parties and the accused also alleged to be admitted, but handed over the demand draft and thereafter, complainant has to return one post dated cheque. In this case, admittedly, no money is paid by the accused so far, which covers under the present cheque.
27. On going through the Ex.P7, the date mentioned there in it discloses 02.03.2014. In order to show that, the said application was filed before the Hon'ble IV Addl. Family Court, on the said day, no document is been produced by the complainant. On meticulous perusal of the certified copy produced, it discloses that, the said document got produced before learned IV MMTC and hence, it was marked as Ex.D22 on 02.08.2017. In order to show that, the said agreement was placed before the Hon'ble IV Addl. Family Court, neither endorsement nor any contention taken by the accused. Therefore, it prima facie discloses, based on Ex.P7 compromise petition, no specific order is obtained from the Hon'ble IV Addl. Family Court.
28. As per the para No.4 of affidavit, the accused as to pay Rs.25 lakhs by way of demand draft, while filing the Ex.P7 compromise petition before the Hon'ble IV Addl. Family Court.
Judgment 31 C.C.No.4597/2015 None of the parties have stated, the said Ex.P7 compromise petition were submitted before the Hon'ble IV Addl. Family Court. When the said application was not submitted before the Hon'ble IV Addl. Family Court, comply from the part of accused, if at all, he really agreed would arise. But such agreement itself not placed before the Hon'ble IV Addl. Family Court, infact which was prepared to produce before that court, but not produced. In doing so, no satisfactory evidence is been placed by the side of complainant.
29. On going through the affidavit para No.5, it also discloses, another Rs.25 lakhs paid by the accused on the date of judgment and decree in mutual consent petition by way of demand draft to the complainant herein, and the complainant shall return the 2nd post dated cheque in favour of accused on receipt of money. As said earlier, the 1st payment is not paid by the accused and to show that, it was brought in to notice of concern court, the said document is not been placed. Moreover, in order apply 2nd condition regarding payment, it requires to draw the judgment and decree in mutual consent petition, but no such effort is made by the parties. In the said affidavit it also contended that, the complainant had agreed to assist the accused in withdrawal of Cr.No.31/2014, registered against him dated:27.01.2014. But in Judgment 32 C.C.No.4597/2015 order to show that, acted upon the Ex.P7 none of the parties have produced any document. The said affidavit in para No.4 is also discloses, in violation of the terms and conditions of the said compromise petition at Ex.P7, narrated in the initiate affidavit, the person who violates in honour the cheques, the complainant had liberty to proceed against in accordance with Negotiable Instruments Act or any other law. In order to show that, the complainant invoke this jurisdiction, the said memo or compromise petition at Ex.P7 not presented before the court, which referred therein. The said affidavit also discloses, the liability of the accused also made mentioned therein, in the event of complainant not agreeing to close the cases, accused had liberty to claim the amount paid earlier to the complainant.
30. The last para of affidavit discloses, based on the said compromise petition at Ex.P7, the complainant and accused through their respective counsels submitted before the Hon'ble IV Addl. Family Court to take on record of the same and draw the judgment and decree as per the agreed terms and conditions. On close reading of the contents made mentioned in the Ex.P7, it made clear that, in the event of the complainant and accused got produced Ex.P7 before the Hon'ble IV Addl. Family Court and got the judgment and decree in pursuance of joint compromise Judgment 33 C.C.No.4597/2015 petition, specific performance on the part of complainant and accused would arise. In order to bring or give effect to Ex.P7, infact, the said agreement has to place before the court which meant. Therefore, it made clear that, the Ex.P7 is not acted upon. Why the Ex.P7 not produced before the concerned court and by convincing the said court stating that, the complainant and accused voluntarily entered into the said settlement and in pursuance of the terms and conditions could have dispose of the matter, as prayed therein. But for the reasons better known to complainant, not did so. Therefore, it made clear that, for the reasons set out by the accused, as it was not voluntary act done by the complainant and accused, as appears to be emerged out of some force and coercion, the said Ex.P7 not produced before the competent court and got authentication by way of obtain any judgment and decree. Therefore, there is some force in the defence of accused, as to non producing Ex.P7 before the Hon'ble IV Addl. Family Court. Therefore, now the complainant without producing the said document before the concern court, after lapse of several years, without producing its original, now produced its copy, it does not mean that, it was binding on the complainant and accused. The Ex.P7 for the reasons discussed supra, mere because of admission of signature by the accused, Judgment 34 C.C.No.4597/2015 itself is not a ground to held against him. The Ex.P7 does not repose confidence as to there was settlement entered into between complainant and accused voluntarily. The accused has successfully proved that, based on Ex.P7, the complainant cannot enforce the claim based on the questioned cheque, as it was not done voluntarily, but with the force and coercion it was emerged. It appears that, under compelling circumstances, the Ex.P7 got created against true affairs between the parties.
31. More particularly, the cross of DW.1, it discloses that, the O.S.No.36/2013 filed by the complainant against the accused is still pending. Therefore, it made clear that, the Ex.P7 not produced in the said court and the said court also not passed any order in respect of alleged compromise petition produced in this case by the complainant at Ex.P7. If at all, the compromise entered into between complainant and accused voluntarily with free-will definitely, there was no impediment to the parties, to place the same before the Hon'ble IV Addl. Family Court and pass necessary award in order to shield the terms and conditions between the parties. If that is not done, the complainant now cannot take the advantage of the same, as scold to claim the money based on questioned cheque. The accused has successfully proved that, the questioned cheques are not issued Judgment 35 C.C.No.4597/2015 by him in pursuance of application at Ex.P7. None of the parties have complied the terms and conditions of Ex.P7, therefore, the same is not binding on both the parties.
32. It is significant fact to note that, though complainant has produced Ex.P7 got marked through DW.1, the application filed by the complainant and accused through the respective counsel under Order 23 Rule 3 r/w Section 151 of CPC, which was prepared to produce before the Hon'ble IV Addl. Family Court in O.C.No.36/2013, they have not produced the same before the said court and closed the said matter. Even, there is no contention taken by both side, as to the authentication of said compromise petition submitted before the competent court. Though, it was ment prepared to produce before the said Hon'ble Family Court, complainant why not produced before the said court and got closed the suit, itself creates doubt. Since, both the parties themselves knew that, it was not voluntarily arrayed the settlement as alleged by the accused, they have not produced before the Hon'ble IV Addl. Family Court and got obtain any decree or award pass on the same. The Ex.P7 is the certified copy obtained from the learned MMTC and produced before this court. That I.A. is not prepared to produce before the Learned MMTC, but was prepared to produce before the Hon'ble IV Addl.
Judgment 36 C.C.No.4597/2015 Family Court. Therefore, the said compromise entered into
between complainant and accused as alleged, not entered voluntarily, therefore, avoided to place the same before the competent court. Hence, no value can be attached to the said compromise petition, as it was inoperative and ineffective.
33. When the compromise itself is inoperative and hence, it has to be presume that, from the accused by using the force of police based on the complainant lodged by the complainant, created unavoidable compelling circumstances to him, to handed over the questioned cheque as well as cheque involved in C.C.No.19287/2014. Hence, it made clear that, the amount covered under those cheques are not the existence of legally recoverable debt. If at all, as deposed by PW.1, the accused got issued the questioned cheques for payment of permanent alimony, definitely, she could have state those things, but the same is lacks in the pleading as well as her affidavit evidence. The complainant has deposed, still getting monthly maintainable from accused. In the pleading, she not contended that, for payment of permanent alimony, the accused got issued the questioned cheque. In order to bring the present case by alleging that, accused has committed the offence punishable under Section 138 of Negotiable Instruments Act, it must be, the cheque Judgment 37 C.C.No.4597/2015 has to be issued for payment of existence of legally recoverable debt. What is the legally recoverable debt fixed to payable by accused to the complainant is not determine. Even, the original suit filed by the complainant itself is still pending before the Hon'ble IV Addl. Family Court. Hence, the contention of the complainant for payment of maintenance, the accused got issued the questioned cheque and cheque involved in C.C.No.19287/2014. In this case, other allegations made by the complainant as to the accused had extramarital relationship with another, all the dispute interse between them, is not a subject matter of the present case. The question arose, whether questioned cheque issued by the accused for discharge of existence of legally recoverable debt are not, but the complainant being a wife of accused, has utterly failed to prove that, the questioned cheque issued by the accused for discharge of existence of legally recoverable debt.
34. Moreover, as pleaded in the complaint, her father had invested any money in purchasing the site, no document is been produced by her. Moreover, the property has purchased in the name of accused and he dealt with the same. Even, the rights of the parties as to the immovable property, no needs to discuss in the present case. Hence, it is the consider opinion of this court, Judgment 38 C.C.No.4597/2015 the complainant has utterly failed to prove the very case by producing, clear, convincing and clinching evidence to prove the guilt of the accused, based on the set up facts alleged in the complaint. Therefore, the appreciating other things and documents does not warranted. When complainant herself has failed to prove that, questioned cheque was issued by the accused for discharge of existence of legally recoverable debt, the compliance of mandatory provision would not attracts the commission of offence by the accused as alleged. Hence, it is consider opinion of this court, complainant has utterly failed to prove her case beyond the reasonable doubt. Hence, the accused is entitled for benefit of doubt for acquittal.
35. On overall appreciation of the material facts available on record, it discloses that, despite the accused harping on the very claim of the complainant, he fails to demonstrate his very case. While appreciate the materials available on record, this court has humbly gone through the decision relied by both parties apart from the following decisions.
In the decision reported in ILR 2009 KAR 2331 (B.Indramma V/s. Sri.Eshwar). Wherein, the Hon'ble Court held that:
Judgment 39 C.C.No.4597/2015 "Held, when the very factum of delivery of the cheque in question by the accused to the complainant and its receipt by complainant from the accused itself is seriously disputed by the accused, his admission in his evidence that, the cheque in question bares his signature would not be sufficient proof of the fact that, he delivered the said cheque to the complainant and the latter received if from the former".
36. The principle of law laid down in the above decision is applicable to the facts of this case. Merely because, the accused admits that, cheque bares his signature, that, does not mean that, the accused issued cheque in discharge of a legally payable debt.
At this stage, this court also relies upon another decision reported in AIR 2007 NOC 2612 A.P. (G.Veeresham V/s. Shivashankar and another). Wherein, the Hon'ble Court has held as under:
"Negotiable Instruments Act (26 of 1881). S. 138 Dishonour of cheque - Presumptions available to complainant under S. 118 and S. 139 of Act -
Rebuttal of cheque in question was allegedly issued by accused to discharge hand loan taken from complainant. However, no material placed on record by complainant to prove alleged lending of hand loan said fact is sufficient to infer that, accused is liable to Judgment 40 C.C.No.4597/2015 rebut presumptions available in favour of complainant under Sections 118 and 139 of Act, Order acquitting accused for offence under S. 138 proper".
37. The principle of law laid down in the above decisions is applicable to the facts of this case. In the case on hand also, as discussed above, the complainant has failed to prove with cogent evidence. Thus, that fact itself is sufficient to infer that, accused is able to rebut presumptions available in favour of complainant under Sections 118 and 139 of the Negotiable Instruments Act.
In a decision reported in AIR 2006 Supreme Court 3366 (M.S.Narayana Menon Alian Mani V/s. State of Kerala and another). The Hon'ble Apex court held that:
"Once the accused discharges the initial burden placed on him the burden of proof would revert back to the prosecution".
38. In this case on hand also, on the lack of the complaint failed to prove the alleged loan transaction, it can gather the probability that, he is not liable to pay Ex.P1 cheque amount of Rs.25 lakhs and it is not legally recoverable debt. So, the burden is on the complainant to prove strictly with cogent and believable evidence. Just because, there is a presumption under Section 139 of Judgment 41 C.C.No.4597/2015 Negotiable Instruments Act, that, will not create any special right to the complainant so as to initiate a proceeding against the drawer of the cheque, who is not at all liable to pay the cheque amount. The accused has taken his defence at the earliest point of time, while record accusation and statement under Section 313 of Cr.P.C. by way of denial. The evidence placed on record clearly probablize that, complainant has failed to prove that, accused issued the cheque for discharge of liability of Rs.25 lakhs. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
39. From the above elaborate discussions, it very much clear that, the complainant has failed to adduce cogent and corroborative evidence to show that, accused has issued cheque Ex.P1 in discharge of his legally payable debt for valid consideration. Hence, rebutted the legal presumptions under Section 139 and 118 of Negotiable Instruments Act in favour of the accused.
40. The sum and substances of principles laid down in the rulings referred above are that, once it is proved that, cheque pertaining to the account of the accused is dishonoured and the Judgment 42 C.C.No.4597/2015 requirements envisaged under Section 138 of (a) to (c) of Negotiable Instruments Act is complied, then it has to be presumed that, cheque in question was issued in discharge of legally recoverable debt. The presumption envisaged under Section 138 of Negotiable Instruments Act is mandatory presumption and it has to be raised in every cheque bounce cases. Now, it is settled principles that, to rebut the presumption, accused has to set up a probable defence and he need not prove the defence beyond reasonable doubt.
41. Thus, on appreciation of evidence on record, I hold that, the complainant has failed to prove the case by rebutting the presumption envisaged under Sections 118 and 139 of Negotiable Instruments Act. The complainant has failed to discharge the reverse burden to prove her contention as alleged in the complaint. Hence, the complainant has not produced needed evidence to prove that, amount of Rs.25 lakhs legally recoverable debt. Therefore, since the complainant has failed to discharge the reverse burden, question of appreciating other things and weakness of the accused is not a ground to accept the claim of the complainant in its entirety without the support of the substantial documentary evidence pertaining to the said transaction. The complainant fails to prove her case beyond all Judgment 43 C.C.No.4597/2015 reasonable doubt. As discussed above, the complainant has utterly failed to prove the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act. Accordingly, I answered the Point Nos.1 and 2 are Negative.
42. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
ORDER Acting under Section 255(1) of Cr.P.C.
the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
The bail bond and cash security/surety bond of the accused stands cancelled.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 9th day of March - 2020) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : K.N.Manjula List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque Ex.P1(a) : Signature of accused Judgment 44 C.C.No.4597/2015 Ex.P2 : Bank endorsement Ex.P3 : Office copy of legal notice Ex.P4 : Postal receipt Ex.P5 : Postal Acknowledgment card Ex.P6 : Reply notice Ex.P7 : Application in O.S.No.36/2013
List of Witnesses examined on behalf of the defence:
DW.1 : P.Srinivas List of Exhibits marked on behalf of defence:
Ex.D1 : CC of complaint dtd:16.02.2013
Ex.D1(a) & D1(b) : Signatures of complainant
Ex.D2 : CC of complaint dtd:27.01.2014
Ex.D2(a) : Signature of complainant
Ex.D3 : CC of petition in O.S.No.36/2013
Ex.D3(a) : Signature of complainant
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 45 C.C.No.4597/2015
09.03.2020.
Comp -
Accd -
For Judgment
Judgment pronounced in the open court vide
separate order.
*****
ORDER
Acting under Section 255(1) of Cr.P.C.
the accused is acquitted for the offence
punishable under Section 138 of Negotiable
Instruments Act.
The bail bond and cash security/surety
bond of the accused stands cancelled.
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.