Bangalore District Court
Sri.R.Gopinath vs Smt.Pushpa Prabhakar on 17 October, 2016
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 17th day of October 2016
Present: Smt. Saraswathi.K.N, B.A.L., LL.M.,
XVI Addl.C.M.M., Bengaluru City.
JUDGEMENT U/S 355 OF Cr.P.C.,
Case No. : C.C. No.16276/2011
Complainant : Sri.R.Gopinath,
S/o.Late.V.Ramakrishnaiah,
Aged about 48 years,
R/at.No.134/1, 4th Main,
4th Cross, Srinivasanagar,
BSK I stage,
Bengaluru-50.
(Rep. by Sri.B.G.Rajshekhar.,
Adv.,)
- VS -
Accused : Smt.Pushpa Prabhakar,
W/o.Prabhakar,
R/at.No.106/202,
Madhukiran, RV-8,
Between 13th & 14th Cross,
Malleswaram,
Bengaluru-03.
(Rep. by Sri.Rachuvachar.,
Adv.,)
2 C.C. No.16276/2011 J
Case instituted : 8.3.2011
Offence complained : U/s 138 of N.I. Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is acquitted
Date of order : 17.10.2016
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that the Accused was known to him through his common friend by name Sri.Venugopalaiah, who is a Chit Development Officer in many chit companies. The Accused had developed friendship with him and borrowed money from him and as well as on the guarantee of himself, the Accused had even borrowed lakhs of rupees from others to repay the same with interest. But the Accused had failed to repay the same and after many panchayaths the Accused had promised to repay the part dues and issued the cheque in his favour.
3 C.C. No.16276/2011 J3. The Accused had requested him to given a hand loan of Rs.70,000/= for clearing the debts and promised to repay the same within 2 months and she issued a cheque for Rs.70,000/= bearing cheque No.761548 dated 10.01.2011 drawn on the SBI, Malleshwaram Branch, Bengaluru, towards the discharge of her liability towards the loan taken from him.
4. The Complainant has further submitted that as per the instructions of the Accused when she presented the cheque on 10.01.2011 to her Bank, the same came to be returned with an endorsement "Funds Insufficient"
vide Bank endorsement dated 18.01.2011. When the same was intimated to the Accused, she promised to repay the cheque amount, but did not come forward to pay the cheque amount.
5. Therefore he got issued legal notice dated 07.02.2011 to the Accused both by RPAD as well as under COP. The said notices were duly served upon the Accused on 09.02.2011. However the Accused contacted her and promised to pay the cheque amount. However she failed to do the same. However the Accused has 4 C.C. No.16276/2011 J neither replied to the notice nor repaid the cheque amount.
6. The Complainant submits that, the dishonour of the cheque by the Accused has been malafide, intentional and deliberate. Feeling aggrieved by the conduct of the Accused, he has filed the present complaint praying that the Accused be summoned, tried and punished in accordance with Sec.138 of the Negotiable Instruments Act.
7. The Pre-summoning evidence has been led by the Complainant on 09.05.2011. Prima-facie case has been made out against the Accused and she has been summoned vide order dated 16.05.2011.
8. The Accused has appeared before the Court on 10.08.2011, she has been enlarged on bail, the substance of the accusation has been read over to her, to which she has pleaded not guilty and claimed the trial.
9. In his post-summoning evidence, the Complainant has examined himself as PW1 and has filed her affidavit, wherein he has reiterated the averments made in the complaint.
5 C.C. No.16276/2011 JP.W.1 has also relied upon the following documentary evidence:-
Ex.P1 is the cheque, in which, the signature is identified by P.W.1 as that of the Accused as per Ex.P1(a), the Bank memo as per Ex.P2, the office copy of the legal notice as per Ex.P3, the postal receipts are as per Ex.P4 & 5, the postal acknowledgement as per Ex.P6 the reply notice as per Ex.P7 and the complaint as per Ex.P8.
10. The statement of the Accused under Sec.313 of Cr.P.C., has been recorded on 4.4.2015. The Accused has denied the incriminating evidence found against her, but has not chosen to lead her rebuttal evidence.
11. In Defence evidence, the Relationship Manager of the SBI, Bengaluru is examined as D.W.1, who has appeared before the Court and has deposed in his evidence on the basis of the authority letter issued to him by the Bank as per Ex.D1 and he has produced the statement of account of the Accused maintained in their Bank as per Ex.D2, the photocopies of the cheque dated 30.12.2011 and the Bank memo. However he has deposed that, he cannot give the details pertaining the 6 C.C. No.16276/2011 J time during which the cheque book pertaining to Ex.P1 has been issued by their Bank.
12. D.W.1 has been cross-examined by the learned counsel for the Complainant, during which he has deposed that as per the statement of accounts of the Accused, the said account was opened on 6.9.2005 and closed on 21.4.2011 and that it was a Savings Bank account, but he is not aware of the fact, as to, if she had applied for the issuance of the cheque book at the time of the opening of the said account and the total number of cheque books that she collected from the Bank since the time of the opening of her account, till the time of its closure and also as to how many cheques have been dishonoured as per Ex.D1. Further it is also deposed by him that there is no separate entry in Ex.D1 about the dishonour of the cheque.
13. The learned counsel for the Complainant has filed his written arguments and prayed for the conviction of the Accused on the ground that, the Complainant has clearly proved that the Accused has taken hand loan from the Complainant and issued the cheque in question towards the discharge of the legally enforceable debt and 7 C.C. No.16276/2011 J the Complainant has complied with Sec.138 of the N.I.Act. Hence the Accused is liable to be convicted.
14. The learned defence counsel has filed written arguments, in which, he has prayed for the acquittal of the Accused on the ground that, the Accused is innocent and she has not committed any offence as alleged by the Complainant and he has also filed memo with the following citations:-
1. In John K.Abraham Vs., Simon C.Abraham and another, reported in (2014)2 SCC 236,
2. In Ramdas Vs., Krishnanand, reported in 2014(3) Crimes 291 (SC),
3. In K.Subramani Vs., K.Damodara Naidu, reported in 2014(4) KCCR 3661 (SC),
4. In DCM Financial Services Ltd., Vs., J.N.Sareen & Ano., reported in AIR 2008 SC 2255,
5. In Krishna Janardhan Bhat Vs., Dattatraya G.Hegde, reported in 2008 AIR SCW 738,
6. In Krishna Janardhan Bhat Vs., Dattatraya G.Hegde, reported in AIR SC 1325,
7. In K.Prakashan Vs., PK.Surenderan, reported in 2007(4) Crimes 217 (SC), 8 C.C. No.16276/2011 J
8. In Sri.A.Viswanatha Pai Vs., Sri.Vivekananda S.Bhat, reported in 2009(1) KCCR 508,
9. In Kumar exports Vs., Sharma Carpets, reported in ILR 2009 Kar 1633,
10. In Sameer Nagpal Vs., Raj Kumar Mittal, reported in 2014(3) DCR 493,
11. In Rajeev Vs., State of Kerala, reported in 2013(1) DCR 390,
12. In Kapadvanj Peoples Co-operative Bank Ltd., Vs., Jayantibhai Talasaji Marawadi and ano., reported in 2013(1) DCR 270,
13. In Sanjay Mishra Vs., Ms.Kanishka Kapoor @ Nikki and ano., reported in 2009 Crl.L.J.3777,
14. In Laxminivas Agarwal Vs., Andhra Semi Conductos Pvt Ltd., Hyderabad & Ors., reported in 2006 Crl.L.J.2643,
15. I have considered the submissions and perused the record carefully.
16. Sec.138 of the Negotiable Instruments Act has been enacted to lend credibility to the financial transactions.9 C.C. No.16276/2011 J
The main ingredients of the offence under Section 138 Negotiable Instruments Act are:-
(i) Drawing up of a cheque by the Accused towards the payment of the amount of money, for the discharge, in whole or in part, of any debt or any other liability;
(ii) Return of the cheque by the bank as unpaid;
(iii) The drawer of the cheque fails to make the payment of the said amount of money within 15 days of the receipt of the notice under the proviso (b) to Section
138.
The Explanation appended to the Section provides that, the "debt or other liability" for the purpose of this Section means a legally enforceable debt or other liability.
17. Apart from this, Sec. 139 of the Negotiable Instruments Act lays down a presumption in favour of the holder of cheque in the following terms:-
"It shall be presumed, unless the contrary is proved, that:-
The holder of a cheque received the cheque, of the nature referred to in Sec. 138, for the discharge, in whole or in part, of any debt or other liability".10 C.C. No.16276/2011 J
18. Also, Sec. 118 of the Negotiable Instruments Act states, "Until the contrary is proved, the following presumptions shall be made:-
(a) 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;"
19. Thus, the Act clearly lays down the presumptions in favour of the Complainant with regard to the issuance of the cheque by the Accused, towards the discharge of his liability in favour of the Complainant.
20. Under the scheme of the Act, the onus is upon the Accused to rebut the presumptions in favour of the Complainant by raising a probable defence.
21. Such being the legal position, it would be pertinent to refer to the defences raised by the Accused to rebut the presumptions in favour of the Complainant in this case.
11 C.C. No.16276/2011 J22. The first defence raised by the Accused in this case is that, she does not know the Complainant at all and that one Venugopalaiah is known to her and that he had collected her blank cheques from her, through which, he has got filed false cases against her.
23. In such circumstance the burden is upon the Complainant to prove his alleged acquaintance as well as the alleged transaction between the Accused and himself. In this regard, during his cross-examination, P.W.1 has deposed that he joined the Sriram Chit Company as an Accountant in the year 1990 and he resigned the said Company in the year 1993. It is further elicited from him that he till 2010 he was working in Yadalam chits from 2007 and since 2010 he has been doing agriculture. It is further elicited from him that he left the jobs in various companies because of low salary.
24. With regard to his annual income in the year 2011, PW1 has deposed that, he has not maintained any accounts and that he is not an income tax assessee and that there is no document to show that he has lent the amount to the Accused. According to P.W.1, he came in 12 C.C. No.16276/2011 J contact with the Accused through Venugopalaiah and that the Accused had put chits in the Sriram Chit Funds through Venugopalaiah and that she might have issued cheques to Venugopalaiah at the time of subscribing to the chits and taking the chit amount for the purpose of security.
25. With regard to his alleged lending of loan to the Accused, P.W.1 has deposed that, for the first time, he lent the loan to the Accused in October 2010 and he lent a total amount of Rs.1,70,000/= to the Accused on 4 to 5 occasions. If this version of the Complainant is to be believed, then it must be noted that the cheque in question is dated 10.1.2011 and if PW1 had lent the loan to the Accused for the first time in October 2010, then it is for him to prove that from October 2010 till 10.1.2011, on which other dates he has lent the amounts to the Accused. However in this regard, P.W.1 has not been able to prove before the court about the dates on which he has allegedly lent the amounts to the Accused. According to P.W.1, the Accused has issued the cheque to him in December 2010 by mentioning the date as 10.01.2011.
13 C.C. No.16276/2011 J26. Though PW1 has claimed that he has lent a total amount of Rs.1,70,000/= to the Accused, he has utterly failed to prove that, as on the dates of his alleged lending of the amounts to the Accused, he had the financial capacity to do the same. As a result, the Complainant has utterly failed to prove the alleged lending of the amount to the accused.
27. The Complainant has examined a witness by name Venugopalaiah as P.W-2, who has corroborated the evidence of the Complainant. However, during his cross examination, it is deposed by P.W-2 that, he cannot say the dates on which and the amounts which is alleged to have been lent by the Complainant to the Accused. It is further deposed by P.W-2 that, there was a dispute between the Accused and himself in the year 2008. This factor is very crucial, because when PW-2 himself admits that there was a dispute between himself and the Accused in the year 2008, then it cannot be believed that again in the year 2010, he could have got lent Rs.1,70,000/- through the Complainant, who is admittedly his friend. It is further elicited from P.W-2 that, no action has been taken by him against the 14 C.C. No.16276/2011 J Accused right from 2008 after she refused to sell her house property situated at Mysuru in his favour.
28. Further during the course of his subsequent cross- examination, P.W.2 has deposed that he is not aware of the contents of the complaint as well as the contents of the legal notice. According to PW-2 the Complainant has lent Rs.1,00,000/- to the Accused on one occasion and Rs.70,000/- on another occasion in the year 2008. However, in his earlier cross-examination it is claimed by PW-2 that, the Complainant has lent the amount to the Accused in the year 2010.
29. These inconsistent claims in the evidence of the Complainant as well as of P.W.2 clearly go to show that, the defence of the Accused is probable and reliable and that the root cause for all these cases is one Venugopalaiah/P.W.2, with whom the Accused admittedly had chit transactions and the said Venugopalaiah/P.W.2, by collecting the signed blank cheques from the Accused has misused the same and filed these false cases against the Accused. Therefore the evidence of PW2 clearly supports the defence of the Accused, rather than that of the Complainant.
15 C.C. No.16276/2011 J30. Moreover it is a well established principle of law that though the Accused is permitted to take any number of inconsistent defences, the Complainant is not permitted to do so. Similarly it is a well settled principle of law that when the entire case of the Complainant is disputed by the Accused, it is the burden cast upon the Complainant to prove his case beyond reasonable doubt. But in the present case, the Complainant has miserably failed in doing so.
31. In this regard, this Court places reliance upon the following decisions:-
1. In Smt.H.R.Nagarathna Vs., Smt Jayashree Prasad reported in 2009(4) Kar L.J.26, wherein it has been held that:-
"When the Complainant failed to prove lending, the existence of the legally enforceable debt not proved beyond reasonable doubt".
2. In S.Thimmappa Vs., L.S.Prakash, reported in 2010(5) KCCR 3397, wherein it has been held that:-
16 C.C. No.16276/2011 J"It is the drawee of the cheque to prove the existence of debt or liability".
3. In Krishna Janardhan Bhat Vs., Dattatreya G.Hegde, reported in 2008 AIR SCW 738, wherein it has been held that:-
"Existence of the legally recoverable debt is not a matter of presumption U/s.139".
4. In Rajendra Pangam Vs., Paresh B.NaiK and others, reported in Laws (BOM) 2015 (4) 39., in the said case there was no evidence forthcoming so as to prove the alleged lending of the amount by the complainant therein and there was also no evidence to show that the complainant was having sufficient amount so as to support the loan of Rs.75,000/- somewhere in June 2008. In such circumstance the Hon'ble High Court of Bombay has allowed the appeal and restored the judgment of acquittal.
5. In Rangappa Vs., Mohan, reported in (2011) 1 SCC 184, wherein it has been held that:-
17 C.C. No.16276/2011 J"Even in the present case the standard of proof for raising the presumption U/s.139 of the N.I. Act by the accused is that of "Preponderance of Probabilities"
and therefore if the accused is able to raise a probable defence, which creates doubts about the existence of a legally enforceable debt or liability, the presumption can fail".
6. In S.K.Mittal Vs., Saree Mahal Reg, reported in 2012 (2) DCR 384, wherein it has been held that:-
"The standard of proof to discharge the burden shifted on the accused to rebut the presumption raised by the court U/s.139 of the N.I. Act is not the same as upon prosecution to prove the case".
7. In Veerayya Vs., G.K.Madivalar, reported in 2012(3) KCCR 2057, wherein it has been held that:-
18 C.C. No.16276/2011 J"When the complainant failed to prove that he had bank balance as claimed by him on the date he has alleged to have advanced the loan and his civil suit was dismissed as not proved and mere issuance of cheque is not sufficient, unless it is shown that the said cheque was issued towards the discharge of a legally recoverable debt and when the complainant's financial capacity is questioned, he has to establish his financial capacity".
8. In M/s.Adithya Alkalods Ltd., and others Vs., NCC Finance Ltd., and another, reported in 2001 Crl.L.J.1858, wherein it has been held that:-
"Mere non-reply to demand notice is no ground to convict the accused in such circumstances."
9. In Ramdas Vs., Krishnanand, reported in 2014(3) Crimes 291, where in it has been held that:-
19 C.C. No.16276/2011 J"When the complainant's financial capacity is denied and disputed, it become a relevant factor".
10. In Shiva Murthy Vs., Amruthraj, reported in ILR 2008 KAR 4629, wherein it has been held that:-
"Before considering the conduct of the accused to find out as to whether or not he has been able to rebut the statutory presumption available U/s.139, the court ought to consider the existence of the legally enforceable debt. It is only after satisfying that the complainant has proved the existence of the legally enforceable debt or liability, the courts could have proceeded to draw presumption u/s.139 of the N.I.Act and thereafter find out as to whether or not the accused has rebutted has rebutted the said presumption".20 C.C. No.16276/2011 J
32. Thus for the reasons discussed above, I proceed to pass the following: -
ORDER By exercising the power conferred u/s 265 of Cr.P.C., the Accused is hereby acquitted of the offence punishable u/s 138 of the Negotiable Instruments Act.
Her bail bond and surety bond stands cancelled.
(Dictated to the Stenographer, transcript thereof is computerized and printout taken by her, verified and then pronounced by me in the open Court on this the 17th day of October, 2016).
(SARASWATHI.K.N), XVI Addl.CMM., Bengaluru City.
ANNEXURE
1. List of witnesses examined on behalf of the Complainant:-
PW.1 : Gopinath; PW.2 : Venugopalaiah.
2. List of documents exhibited on behalf of the Complainant:
Ex.P-1 : Original Cheque;
Ex.P-1(a) : Signature of the Accused;
21 C.C. No.16276/2011 J
Ex.P-2 : Bank memo;
Ex.P-3 : Copy of the Legal Notice;
Ex.P-4 & 5 : Postal receipts;
Ex.P-6 : Postal acknowledgment;
Ex.P-7 : Reply notice;
Ex.P-8 : Complaint.
3. List of witnesses examined on behalf of the Accused:
DW-1 : Siddarth Das.
4. List of documents exhibited on behalf of the Accused:
Ex.D1 : Statement of Accounts of the Accused (SARASWATHI.K.N), XVI ACMM, Bengaluru City.